UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY CHICAGO STA.r? fJINOERY -^■>>« ""- T.pring St., L. A. Mutual 4434 THE CODES AND STATUTES OF THE STATE OF CALIFORNIA. BY THEODOEE H. HITTELL, ACTHOE OF "HITTELL's GENEKAL LAWS," AND OTHEK LAW PUBLICATIONS. IN TWO VOLUMES. Vol. I. SAN FRANCISCO-. A. L. BANCKOFT AND COMPANY, Law Book Publishees, Bookselleks and Stationees. 1876. 5 C30 Eutercil according to Act of Congress, in the year 187G, By a. L. BANCROFT &: CO^ilPANY, In the office of the Librarian of Congress, at Waslungtcn. Bks rBANcmoo: A. I.. U4N<.IM>IT A OOUPAKr, lUlNU UK. PREFACE. This work is designed to give, in as complete and convenient a form as is practicable, the statute laws of a general nature of the State of California, as they at present exist. These laws consist of what are known as the Codes, and various other acts which were either continued in force by the Codes, or were unaffected by them, or have been passed since their adoption. The separate acts referred to, if they treat of subjects also treated of in the Codes, will be found inserted in proper places in the Codes; otherwise, they will be found in the latter portion of the work under the oreneral head of " Statutes in Force." Many special and local acts, particularly such as modify the general rules of the Codes, or such as affect many persons, or are of important application in many counties, are also given, the plan being to include all the general and as much of the special and local legislation of the State as can be contained in a digest of reasonable compass. Where the special and local acts are not given in full, they are referred to in such a manner as to guide the inquirer and enable him readily to find what he seeks for; and in all cases the special and local laws affecting- particular counties are referred to under the heads of the respective counties. Ticclaratioit of ^nktitnticucc. JULY 4, 1776. THE UNANIMOUS DECLARATION OF THE THIRTEEN UNITED STATES OF AMERICA IN CONGRESS ASSEMBLED. i. When, in tlie course of human events, it becomes necessary for one people to dissolve tlie political bands which have connected them with another, and to assume among the powers of the earth the separate and equal station to which the laws of nature and of nature's God entitle them, a decent resjiect to the opinions of mankind requires that they should declare the causes which impel them to the separation. "We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, libert}', and the pursuit of happiness; that, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; that, whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles, and organizing its jDOwers in such form, as to them shall seem most likely to efiect their safety and happiness. Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and, accordingly, all experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to Avhich they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same object, evinces a design to reduce them under absolute despotism; it is their right, it is their duty, to throw olJ such government, and to provide new guards for their future security. SucL has been the patient sufferance of these colonies, and siich is now the necessitv which constrains them to alter their former systems of government. The history of the present king of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute tyranm over these states. To prove this, let facts be submitted to a candid world: — He has refused his assent to laws the most wholesome and necessary for tht public good. He has forbidden his governors to pass laws of immediate and jjressing importance, unless suspended in their operation until his assent should be obtained; and, when so suspended, he has utterly neglected to attend to them. He has refused to pass other laws for the accommodation of large districts o; people, unless those people would relinquish the right of representation in the legislature — a right inestimable to them, and formidable to tyrants only. He has calleel together legislative bodies at places unusual, uncomfortable, and distant from the repository of their public records, for the sole purpose ol fatiguing them into compliance with his measures. He has dissolved representative houses repeateelly for opposing with manlv firmness his invasions on the rights of the people. He has refuseel, for a long time after such dissolutions, to cause others to be 5 i DECLAPuVTlON OF IXDEPENDE^CE. electevl; whereby tlie legislative powers, incapable of annibilation, liave returned to the people at* large for theii- exercise— the state remaining-, in tbe meantime, exposed to all the daugei-s of invasion from -n'ithout and convulsions within. He has endeavored to prevent the jiopulation of these states— for that purpose obstructing the laws of naturalization of foreigners, refusing to pass others to eucourage their migration hither, and raising the conditions of new appropri- ations of lauds. He has obstructed the administration of justice, by refusing his assent to laws for establishing judiciary powers. He has made judges dependent on his will alone for the tenure of their offices luid the amount and payment of their salaries. He has erected a multitude of new offices, and sent hither swarms of officer? to harass our people and eat out their substance. He has kei)t among us, in times of peace, standing armies, without the consent of our legislatures. He has aflfected to render the military independent of, and superior to the civil power. He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws — giving his assent to their acts of pretended legislation; For quartering large bodies of armed troops among us; For protecting them, by a mock trial, from punishment for any murders which they should commit on the inhabitants of these states; For cutting of!" our trade with all parts of the world; For imposing taxes on us without our consent; For depriving us, in many cases, of the benefits of trial by jury; For transporting us beyond seas to be tried for pretended offenses; For al>olishiug the free system of English laws in a neighboring province, t-stablishing therein an arbitrary government, and enlarging its boundaries, so- us to render it at once an example and tit instrument for introducing the same absolute rule into these colonies; ■;g away our charters, abolisliing our most valuable laws, and altering, i !:dly, the forms of our governments; For suspending our own legislatures, and declaring themselves invested with jiower to legislate for us in all cases whatsoever. H«' has alxlicated government here b}- declaring us out of his protection and r against us. plundered our seas, ravaged our coasts, burnt our towns, and V €h1 the lives of our people. ii' :s at this lime transjiorting large armies of foreign mercenaries to complete thf woiKh of - stage of these oppressions, we have petitioned for redress in the moht hundilo lemis. Our repeated petiti«jn8 have been answered only by repeated injury. A prince, whose character is thus marked by every act which may deOuc a tyrant, is unfit to be the ruler of u free people. G DECLAKATION OF INDEPENDENCE. Nor have we been wanting in attentions to our British brethren. We have warned them, from time to time, of attempts, by their legislature, to extend an unwarrantable jurisdiction over us. We have reminded them of the circum- stances of our emigration and settlement here. We have appealed to their native justice 'and magnanimity, and we have conjured them, by the ties of our common kindred, to disavow these usurpations, which would inevitably inter- rupt our connections and correspondence. They, too, have been deaf to the voice of justice and consanguinity. We must, therefore, acquiesce in the necessity which denounces our separation, and hold them, as we hold the rest of mankind, enemies in war; in peace, friends. We, therefore, the representatives of the United States of America, in General Congress assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the name and by the authority of the good people of these colonies, solemnly publish and declare that these united colonies are, and of right ought to be, free and independent states; that they are absolved from all allegiance to the British Crown, and that all political connec- tions between them and the State of Great Britain is, and ought to be, totally dissolved; and that, as free and independent states, they have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent states may of right do. And for the support of this declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our lives, our fortunes, and our sacred honor. The foregoing declaration was, by order of Congress, engrossed and signed by the following members: John Hancock, Samuel Adams, John Adams, Robert Treat Paine, Elbridge Gerry, Josiah Bartlett, William Whipple, Matthew Thornton, Stephen Hopkins, William Ellery, C^sAR Rodney, George Read, Thomas M'Kean, Roger Sherman, Samuel Huntington, William Williams, Richard Stockton, John AVitherspoon, Francis Hopkinson, John Hart, Abraham Clark, William Hooper, Joseph Hewes, John Penn, Robert Morris, BenjajShn Rush, Benjamin Franklin, John Morton, Oliver Wolcott, Samuel Chase, William Paca, Thomas Stone, Charles Carroll, of Carrollton. W^iLLiAM Floyd, Philip Livingston, Francis Lewis, Lewis Morris, George Wythe, Richard Henry Lee, Thomas Jefferson, Benjamin Harrison, Thomas Nelson, Jr., Francis Lightfoot Lee, Carter Braxton, George Clymer, James Sj\nTHE, George Taylor, James Wilson, George Ross, Edward Rutledge, Thomas Heyward, Jr., Thomas Lynch, Jr., Arthur Meddleton, Button G\\innett, Lyman Hall, George Walton. (loitoHlulioii of lljc Idiitcii Strttcs. ii. Pi-eamhle. We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our i>usterity, do ordain and establish this Constitution for the United States of ^Vmerica. AETICLE I. Legi^alive Poicer — Congress. Section 1. All legislative powers herein granted shall be vested in a congress of the United States, which shall consist of a senate and house of represent- atives. House of Represeixiaiives. Sec. 2. The house of representatives sliall be composed of members chosen every second year by the people of the several states, and the electors in each state shidl have the quulilications requisite for electors of the most numerous branch of the state legislature. No person shall be a representative who shall not have attained to the age of twenty-five years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that state in which he shall be chosen. Representatives and direct taxes shall be apportioned among the several states which may be included within this Union, according to their respective numbers, which shall be determined by adding to the whole number of free persoiis, including those bound to service for a term of years, and excluding Iniliuns not taxed, three iifths of all other persons. The actual enumeration sluill be made within three years after the first meeting of the congress of the United States, and within every subsequent term of ten years, in such manner as Uiey shidl l»y law direct. The number of representatives shall not exceed one for every thirty thousand, but each state shall have at least one represent- otive; and until such enumeration shall be made, the state of New Hampshire shall lie entitled to choose three, Massachusetts eight, Rhode Island and Prov- idence Plantations one, Connecticut five. New York six. New Jersey four, PennKylvunia eight, Delaware one, ilaryland six, Virginia ten, North Carolina five, South ('ur«jlina five, and Gee appointed to any civil office under the authority of the United States, which shall have been cx-eated, or the emoluments whereof shall have been increased duriu" such time; and no person holding any office under the United States, shall be a member of either house during his continuance in office. Manner of pa.e uniform throughout the United States; To borrow money on the credit of the United States; To regulate commerce with foreign nations,'" and among the several states, and with the Indian tribes; To establish an uniform rule of naturalization,""^ and uniform laws on the subject of bankruptcies throughout tlie United States; 1 ■ T),. ►Uii-i. l."M t . l.Rv. r.ornrront power with Io^k hiuI hinilxr lloalcd down a stream from that utate ■ uu(l<.'rHUiidiDK li.lo un ftdji.liiiug htatc. C«rnou IMvt-r L. Co VB. Pattcr- 'luuat muKt givu Kuii, xt Cal. :i::i. ■| hi' tJix updii jiaRsc-nRcrR. provided for by the act of .it iu t.i.ugriM>. People vs. May U, IHCi (StutB. iso.i,.''.:!'.)). wiiH a ri(,nilutioiiof coin- ' iinrcc mid ripiiKiiBiit to the IT. S. CouBtitution. People • >•. \Oii ii 1 ii rcliivd. Mitchell vh. Uuyinoinl, :h Oul. 4'.»2. The jMiwer to cxclinle from tlie liiiilts of a Btate per- of rornmercUI boiim In tlic lull i»ihhikh1oii of tlitir fuculties, sound in ' '• pentonn M well body, wl.n arc ii<-lth'«. victfd of ji'lty larreny nhall agniu coiuiiiit petty lar- 1-" ■< liy a ((Piitract a- ex jioht farto hiw, even when applied to a person who U n Vh. Miigee, coniniilted the llrst ollensi; prior to tlie pas^age of the *' Htntiite. Kx ])arte Gutierrez, 4.') Cal. 4'ii». A law rlianKln« the forms of proeediiro bv which per- A M> to rt^iniUtf tha remedy cons an used .if crime are to be tried Jor offenses coin- •• ■ '' ' '' ''•'•' " ■■ ■ "iiH mltted iKfiire the law was passed, is not an ex post facto "' I hiw. J'eojile vs. Mortimer, •!« Cal. IH. •') C") The revenue act of Ajiill W, IH.'iH, go far as it •; ■ ■-•• ■ • '. JO ImposeH a tax upon bills of Ij.dintj; for transportation <-'» "f Kold or silver Irom this slate to another, is in emu A 1 .n. i»wu-d iMiween fllei with this clause. Brummagiin vs. TiUiui/hast, 18 tJi- In Judicial HBlu Cftl. -IM. » of ouch Wile. The art of May 3, IH.VJ, providluK for appointment of •J' • 't. Moore VH. a ganger at San Francisco, was not uncon^tiiullonal ae W' ■ Impi'sing duties on imp.irts by state authority, because u-<\ and "not s state has a right to pass inspection laws, and this P»i «»"• It 1* not Involves the power of enforcing them by ade.puite pro- C";- . ii Jnv«lldort» vIhIodh lo pay inspecting officers. Addison vs. Saulnier, •Utlion/< k luli'ituti f;-jtuttiimUult Iv 7jj/tv — Calling together and adjourning congress, etc. Sec. 3. He shall from time to time give to the congress information of the 6ti»t6 of the Union, and recommendlo their/consideration such measures as he shall judge neces.sary and expedient; he may, on extraordinary occasions, convene l.>oth houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper; he shall receive ambassadors and other public ministers; he shall take care that the laws be faithfully executed, and shall commission all the officers of the United States. Hemoval o/officos on impeachments. Sec. 4. The president, vice-president and all civil officers of the United Staif^, shall be removed from office on* impeachment for, and conviction of, treason, briber}', or other high crimes and misdemeanors. ARTICLE III. vi. Judicial department. Section 1. The judicial power of the United States shall be vested in one supreme court, and in such inferior courts as the congress ma^' from time to time ordain and e.stablish.'"^ The judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation which shall not be dii^uished during their continuance in office. Judirial power. Sec. 2. The judicial power shall extend to all cases, in law and equity, arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; — to all cases afi'ectiug axubassars, other public ministers, and consuls; — to all cases of admiralty and maritime jurisdiction;"'*— to controversies to which the United States shall lie a party; — to controversies between two or more states; — between a state and ^^H^ f another state; — between citizens (jf difToront states; — between citizens ^Bp M« state; elaiijiing lands under grants of diflerent states, and between a hiafT^ or the citizens thereof, and foreign states, citizens or subjects.*"^ lu all cjuiCK afletting andmssadors, other public ministers and consuls, and thoHe iu which a state shall be party, the supreme court shall have original j ■ "• I" 'dl tlie other cases before mentioned, the Kupreme court shall 1 . . ■ date juriwliction, both as to law and fact, with such exceptions, and under such reguhitic^ns as the congress shall make."'* The Irial of all crimes, except in cases of impeachment, shall be by jury; and HUch trial shall be hehl iu the state where the said crimes shall have been corn- ed) C^AtirnM raMiot confrr ;urt>MlrUn rn-latr (c) Tlic riilatinnK of tlie federal nixl tttiite courts to . . . .< I . . -rf. I . ,. ™ • #-1 ••■••h other (llwiiHFed. JolitiHon VH. Gordon, 4 Cal. 3(a- MliiiHon rf religion, etc. CuXGUESs sball make no law resi^ecting an estaLlislinient of religion, or pro- hibiting the free exercise thereof; or abridging the freedom of speech or of the press; or the right of the people peaceably to assemble, and to petition the goveruujeut for a redress of grievances. {Amendment, 2:>ropo»ed 25th September, 178U; ratified loth December, 1701. ARTICLE II. Right to bear arms. A well-regulated militia being necessaiy to the security of a free state, the right of the people to keep and bear arms shTill not be infringed. [Amendmeni, jjrujMj^ed 2oth September, 1789; ratified loth December, 1791. ARTICLE III. No soldier to be billeted, etc. No soldier shall, in time of peace, be quartered in any house without the con- seut of the owner, nor in time of war, but in a manner to be prescribed by law. [Amendment, proposed 25th September, 1789; ratified 15l]i December, 1791, ARTICLE IV. Uurcaisonable searches jrrohibilcd. The right of the people to be secure in their persons, houses, papers, and fflecu, uguiuHt unreasonable searches and seizures, shall not be \iulated, and no wurrunth hhall issue, but upon probable cause, supported by oath or aftirma- tion, and particularly describing the i)lace to be searched, and the persons or things to bo seized. [^Amendment, j/ropused 25th September, 1789; ratified 15th December, 17U1, ARTICLE V. xi. Criminal prfpcfrdir.gn. No peiTjon bhall be held to answer fur a capital, or otherwise infamous cvime, uuIchH on a preHcntmcnt or indictment of a grand jury, except in cases arising in the land or naval forccH, or in tlie militia, when in actual service in time of war or i»iiblic danger; nor shall any jxrKon be subject for the same offense to be twice put in jeopardy of life or liftilt; injr shall l>c compelled in any criminal caise to be a wituehs against himself, nor be de^jrived of life, liberty, or prop- erty, without due proccHM of law; nor shall private property be taken forjMiblic use, without just compensation. {Amendment, proposed 25(]i September, 1789; raiifi'd 15th December, 1791, 18 CONSTITUTION OF THE UNITED STATES. xi-xii ARTICLE VI. Mode of trial. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial juiy of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtain- ing witnesses in his favor, and to have the assistance of counsel for his defense. {Amendment^ l^'^'oposed 2olh September , 17S9j ratified l^th December, 1791. ARTICLE VII. HigJds of trial by jury. In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of the United States, than accord- ing to the rules of the common law. [Amendment, proposed 25th September, 17«9; ratified 15th December, 1791. ARTICLE VIII, Bails — Fines. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. [Amendment, j^roposed 25ili September , 1789; ratified 15th December, 1791, ARTICLE IX. Eights not enumeraied^ The enumeration in the constitution, of certain rights, shall not be construed to deny or disparage others retained by the people, [Amendment, proposed 25th September, 1789; I'alijied 15th December, 1791. ARTICLE X. xii. Potcers reserved. The powers not delegated to the United States by the constitution, nor pro- hibited by it to the states, are reserved to these states respectively, or to the people, [Amendment, proposed 25th September, 1789; ratified 15th December, 1791. ARTICLE XL Limitation of judicial power. The judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state. [Amendment, pi^oposed 5th March, 1794; raiified 8th January, 1798, ARTICLE XII. Election of president and vice-president. The electors shall meet in their respective states, and vote by ballot for president and vice-president, one of whom, at least, shall not be an inhabitant of the same state with themselves; thej^ shall name in their ballots the person voted for as president, and in distinct ballots the person voted for as vice- president, and they shall make distinct lists of all persons voted for as presi- dent, and of all persons voted for as vice-president, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the president of the senate; — the president of the senate shall, in presence of the senate and house of rep- 19 xii-xiii CONSTITUTION OF THE UNITED STATES, resentiitives, open all the certificates, and the votes shall then be conntecT; — the person havin^r the p^eatest nuuibev of Tote.s for president, shall be the presi- dent, if such number be a majority of the whole number of electors appointed;: and if no person have such majority, then from the persons having the highest uiimbei-s, not exceeding three on the list of those voted for as president, the house of representatives shall choose immediately, by ballot, the president. But in choosing the president, the votes shall be taken by states, the repre- sentation from each state having one vote; a quorum foi- this purpose shall consist of a member or members from two thirds of the states, and a majority of all the states shall bo necessaiy to a choice. And if the hotrse of representa- tives shall not choose a president whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the vice- president shall act as president, as in the case of the death or other constitu- tional disability of the president. The i>erson having the greatest number of votes as vice-president shall be the vice-president, if such number be a majority of the whole number of elector* apjtointed; and if no person have a majority, then from the two highest numbers- tin the list, the senate shall choose the vice-president; a quorum for the piw- pose shall consist of two thirds of the whole number of senators, and a majority of the whole number shall be necessary to a choice. But no person constitutional!}' ineligible to the office of president shall be eligible to that of vice-president of the United States. [Amendment, jyroposed 12//i December, 1803; ratified TAli September , 1804. ARTICLE XIII. xiii. Slavenj prohihiled. Sectios 1. Neither slaveiy nor involuntary servitude, except as a punishment^ for crime whereof the party shall have been duly convicted, shall exist within the United States or any i)lace suljject to their jurisdiction. Sec. 2. Congress shall have power to enforce this article by appropriate leg- islation. [Amendment, proposed Isl Februanj, 1865; declared ratified ISih Decem- ber, 18G5. ARTICLE XIV. Cilizt'tty, who are — Riffhlii of citizensJtip. ShXTioN 1. All pei-sons bom or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall. iiiiiidge the jtrivilegos or immunities of citizens of the United States; nor shall any Ktiit<; deprive any person of life, liberty or property without due process of law, «'••• •!' "v to tiny person within its jurisdiction the equal protection of the luWK." Aj>j>oriionment of rrprenndnlion . Sec. 2. KepreHentatives slmll be rqipovtionod among the several states accord- inj? to their reK])ec-tive numbers, counting the whole number (jf persons in each »*■' ' not taxed. But when the right to vote at any election '"' ' • - f<^»i" president and vice-president of the United States, repreocntatives in congress, the executive and judicial officers of a state, or the :■ - X'TT^' •"^'■^^ ynUiV. f.rllS ft .tf.|. f - „, ,l.,]y. I'.yt), •1 by all iTDMiDi •lilic. U»rd v«. H.x>a, r.y till- fiinrtpiiith aiufndment the prlvilcgCR and im- Tinuiitli-H ./f ritiziiiH of (li<; United States, ihenby eon- tt<, etc. Immediately upon the ratification of the present Treaty by the government of the United States, orders shall be transmitted to the commanders of their land and naval forces, requiring the latter (pro%'ided this Treaty shall then have been ratified hj the government of the Mexican Republic, and the ratifications exchanged) immediately to desist from blockading any Mexican ports; ;iud requiring the former (under the same condition) to commence, at the earliest moment practicable, withdrawing all troops of the United States then in the interior of the Mexican Republic, to jioints that shall be selected by common agreement, at a distance from the seaports not exceeding thirty leagues; and such evacuation of the interior of the Republic shall be completed Avitli the least possible delay; the Mexican government herebj^ binding itself to afford eveiy facility in its power for rendering the same convenient to the troops, on their march and in their new positions, and for promoting a good understanding between them and the inhabitants. In like manner, orders shall be dispatched to the persons in charge of the custom-houses at all the ports occupied by the forces of the United States, requiring them (under the same condition) immedi- ately to deliver possession of the same to the persons authoi-ized by the Mexican government to receive it, together ^vith all bonds and evidences of debt for duties on importations and on exportations, not yet fallen due. Moreover, a faithful and exact account shall be made out, showing the entire amount of all duties on imports and on exports, collected at such custom-houses or elsewhere in Mexico, by authority of the United States, from and after the day of the rat- ification of this Treaty by the government of the Mexican Republic; and also an account of the cost of collection; and such entire amoimt, deducting only the cost of collection, shall be delivered to the Mexican government, at the city of Mexico, within three months after the exchange of ratifications. The evacuation of the capital of the Mexican Republic b}' the troops of the United States, in virtue of the above stipulation, shall be completed within one month after the orders there stipulated for shall have been received b}- the commander of said troops, or sooner, if i^ossible. ARTICLE IV. Besforalion of castles, forts, prisoners, etc. Immediatelj'^ after the exchange of ratifications of the present Treaty, all castles, forts, territories, places, and possessions, which have been taken or occupied b^' the forces of the United States during the present war within the limits of the Mexican Republic, as about to be established hy the following article, shall be definitively restored to the said republic, together with all the artillery, arms, apparatus of war, munitions, and other public property, whicli were in the said castles and forts when captured, and which shall remain there at the time when this Treaty shall be duly ratified by the government of the Mexican Republic. To this end, immediately upon the signature of this Treaty, orders shall be dispatched to the American officers commanding such castles and forts, securing against the removal or destruction of any such artillery, arms, apparatus of war, munitions, or other public property. The city of 23 XIV TREATY OF GU.IDALUPE HIDALGO. Mexico, within the inner line of intrenclimeuts suirounding the said city, is comiu-eh ended in the above stipulations as regards the restoration of artilleiy, apparatus of war, etc. The tiual evacuation of the territory of the Mexican Eepuhlic, by the forces of the United States, shall be completed in three months from the said exchange of ratifications, or sooner, if possible: the Mexican government hereby engaging, as in the foregoing article, to use all means in its power for facilitating such evaL-uatiun, and rendering it convenient to the troops, and for promoting a good understanding between them and the inhabitants. If, however, the ratification of this Treaty by both parties should not take place iu time to allow the embarkation of the troops of the United States to be completed before the commencement of the sickly season, at the Mexican ports on the Gulf of Mexico, iu such case a friendly arrangement shall be entered into between the geueral-in-chief of the said troops and the Mexican govern- ment, whereby healthy and otherwise suitable places, at a distance from the ports not exceeding thirty leagues, shall be designated for the residence of such troojis as may not yet have embarked, until the return of the healthy season. And the space of time here referred to as comprehending the sickly season, shall be understood to extend from the first day of May to the first day of November. All prisouei-s of war taken on either side, on land or on sea, shall be restored as soon as practicable after the exchange of ratifications of this Treaty. It is also agreed that if any Mexicans should now be held as captives by any savage tribe within the limits of the United States, as about to be established by the following article, the government of the said United States will exact the release of such captives, and cause them to be restored to their country. AETICLE V. Boundary-line. The boundary -line between the two republics shall commence in the Gulf of Mexico, three leagues from land, opposite the mouth of the Rio Grande, other- wise called Rio Bravo del Norte, or opposite the mouth of its deepest branch, if it should have more than one branch emptying directly into the sea; from theuce up the middle of that river, following the deepest channel, where it has more than one, to the point where it strikes the southern boundary of New Mexico; theuce, westwardly, along the whole southern boundary of New Mexico (whi«-h runs north of the town called Paso) to its western termination; thence, ijoilhwurd, along the western line of New Mexico, until it intersects the first brunch of the river Gila (or, if it should not intersect any branch of that river, then to the point on the said line nearest to such branch, and thence in a direct line Ui the samiO; theuce down the middle of the said branch and of the said river, until it eniplieh int.j the Rio Colorado; thence across the Rio Colorado, following llie diviwiou line; between Ujtper and Lower California, to the Pacific Ocean. The Bouthern and western limits of New Mexico, mentioned in this article, are those laid down in the maj) entitled "Map of the United IMexican States, as organizwl and defined by various acts of the Congi-ess of said Republic, and constructed according t (liylarf-d mirh intention stlU When California -was ceded to the United States, the rMn.Ki «!(. r>« •!.■■! for.-l«nerN. I'toj.k- vb. Naglio. 1 Cal. rl(,'htB cf property "f its citizens remained unchanged. n.v the law of niitinnB thoHc rights wen- Kscrcd and in- '.f land by the Mpxlcin Rovcmor, violulil.:, and tli.' (.bligiitioii passed to tlic now g.ivern- ■ ».v fhr ^mnK-n «lth the further nient to protect and tiiaintain them. The term prop- • f'irinKhut anliichinte erty as applied to lands embraces all titles lef,'al or ' ri.lli'.l St»ti-K. »hii-h efpiitiilde, perfect or imperfect. Teschemacher vs. ' "• '1 liy the Tn-aty and Tlionipsoii, IH Cal. 12. "f "'Ih trust ia Mexican grants are leRal titles, and most of them, ■■ . -y l" H"t '•onipe- wheii nnitcd to possession, are such equitable titles as ,1 ►.<• Fi-rrls VB. are entitled t j.roiection and give a liKht to a posses- i'> ..1. ..-.. ►.. » ». 1...M ihClarke, IH Cal. gory action. I.atlirop vs. Mills, 1!) Cal. .'^pi:). ,,,,.,.,, ... The provisions ol the trc'aty of Guadalupe Hidalgo vni.lifyof Mniran (rranU of Und In r»l|f.>nila operat.-d as a confirmation in preseidi of all perfect ■ „T"'.?"''U''^,"'"J''^" '•**"• I'':Vander. tltl.H to lands in California held under Spanish or f 1 •. ». uaniw, J cai. 27, 47 , I- errla v«. Coovcr, 10 C«l. Mexican grantH. Miuturn vs. Brewer, 21 Cal. 044. 20 TKEATY OF GUADALUPE HIDALGO. xiv now occupied by savage tribes, who will hereafter be under the exclusive con- trol of the government of the United States, and whose incursions within the territory of Mexico would be prejudicial in the extreme, it is solemnly agreed that all such incursions shall be forcibly restrained by the Government of the United States whensoever this may be necessary; and that, when they cannot be prevented, they shall be punished by the said government, and satisfaction for the same shall be exacted— all in the same way, and with equal diligence and energy, as if the same incursions were meditated or committed within its own territory against its own citizens. It shall not be lawful, under any pretext whatever, for any inhabitant of the United States to purchase or acquire any Mexican, or any foreigner residing in Mexico, who may have been captured by Indians inhabiting the territory of either of the two republics, nor to purchase or acquire horses, mules, cattle, or property of any kind, stolen within Mexican territory by such Indians. And in the event of any person or persons, captured within Mexican territory by Indians, being carried into the territory of the United States, the govern- ment of the latter engages and binds itself in the most solemn manner, so soon as it shall know of such captives being within its territory, and shall be able so to do, through the faithful exercise of its influence and power, to rescue them, and return them to their country, or deliver them to the agent or representative of the Mexican government. The Mexican authorities will, as far as practi- cable, give to the government of the United States notice of such captures; and its agent shall pay the expenses incurred in the maintenance and transmission of the rescued captives; who, in the meantime, shall be treated with the utmost hospitality by the American authorities at the place where they may be. But if the government of the United States, before receiving such notice from Mexico, should obtain intelligence, through any other channel, of the existence of Mexican captives within its territory, it will proceed forthwith to effect their release and delivery to the Mexican agent as above stipulated. For the purpose of giving to these stipulations the fullest possible efficacy, thereby affording the security and redress demanded by their true spirit and intent, the government of the United States will now and hereafter pass, with- out unnecessary delay, and always vigilantly enforce, svich laws as the nature of the subject may require. And finally, the sacredness of this obligation shall never be lost sight of by the said government when pi'oviding for the removal of the Indians from any jDortion of the said territories, or for its being settled by citizens of the United States; but, on the contrary, special care shall then be taken not to place its Indian occupants under the necessity of seeking new homes, by committing those invasions which the United States have solemnly obliged themselves to restrain. ARTICLE XII. Fifteen million dollars to he paid to Mexico. In consideration of the extension acquired by the boundaries of the United States, as defined in the Fifth Article of the present Treaty, the government of the United States engages to pay to that of the Mexican Republic the sum of fifteen millions of dollars. Installments of payment — Interest on deferred payments. Immediately after this Treaty shall have been duly ratified by the govern- ment of the Mexican Republic, the sum of three millions of dollars shall be paid to the said government by that of the United States, at the city of Mexico, in gold or silver coin of Mexico. The remaining twelve millions of dollars shall be paid at the same place, and in the same coin, in annual installments of 27 siv TREATY OF GUADALrPE HIDALGO. tliree millions of doUai-s each, tooetlier with interest on the same at the rate of six per centum i)er auuuni. This interest shall begin to run upon tlie whole sum of twelve millions from the day of the ratification of the present Treaty by the Mexican govemment, and the first of the installments shall be paid at the expiration of one year from the same day. Together with each annual install- ment, as it falls due, the whole interest accruing 'on such installment from the beginning shall also be paid. ARTICLE XIII. Asstu)i]>(tun by United Slates of claims against llexico. The Uuit4:'d States engage, moreover, to assume and paj' to the claimants all the amounts now due them, and those hereafter to become due, b}' reason of the claims already liquidated, and decided against the Mexican Republic, under the conventions between the two republics severally concluded on the eleventh day of April, eighteen hundred and thirty-nine, and on the thirtieth day of January, eighteen hundred and fortj'-three; so that the Mexican Republic shall be absolutely exempt for the future from all expenses whatever on account of the Siiid chiims. ARTICLE XIV. Disclianie of claims of American citizens against Mexico. The United States do furthermore discharge the Mexican Republic from all claims of citizens of the United States, not heretofore decided against the Mexican government, which may have arisen previously to the date of the sig- nature of this Treaty; which discharge shall be final and perpetual, whether the »»aid claims be rejected or be allowed by the board of commissioners provided for in the following article, and whatever shall be the total amount of those alloweil. ARTICLE XV. Satije daily furnished by the party in whose power they are, with as many rations, and of the same articles, as are allowed, either in kind or by commutation, to otficei-s of equal rank in its own army; and all others shall be daily furnished with such ration as is allowed to a common soldier in its own service: the value of all which supplies shall, at the close of the war, or at peri- ods to 1)e agreed upon between the resj^ective commanders, be paid by the other pai-ty, on a mutual adjustment of accounts for the subsistence of prisoners; and such accounts shall not be mingled with or set off against any other?, nor the Ixilance due on them be withheld, as a compensation or reprisal for any cause what- ever, real or pretended. Each party shall be allowed to keep a commissaiy of prisoners, apjjoiuted by itself, with eveiy cantonment of prisoners, in possession of the other; which commissary shall see the prisoners as often as he pleases; shall be allowed to receive, exemj)t from all duties or taxes, and to distribute, whatever comforts may be sent to them by their friends; and shall be free to transmit his reports in ojien letters to the party by whom he is employed. And it is declared that neither the pretense that war dissolves all treaties, nor any other whatever, shall be considered as annulling or suspending the solemn covenant contained in this article. On the contrary, the state of war is precisely that for which it is provided; and during which its stipulations are to be as sacredly obsei'ved as the most acknowledged obligations under the law of nature or nations. AETICLE XXIII. Ratificniion of Irenly. This Treaty shall be ratified by the president of the United States of America, by and with the ad^^ce and consent of the senate thereof; and by the president of the Mexican Republic, with the previous approbation of its general congress; and the ratifications shall be exchanged in the city of Washington, or at the seat of {,'overnmcnt of ^lexico, in four months from the date of the signature hereof, or sooner if practicable. In faith whereof, we, the respective plenipotentiaines, have signed this Treaty of \K'ixv('. friendship, limits, and settlement; and have hereunto affixed our seals respectively. Done in quintuplicate, at the city of Guadalupe Hidalgo, on the second day of Februar}-, in the year of our Lord one thousand eight hundred and forty-eight. N. P. Trist. [l. s.l Luis G. CUEVAS. [l. s.] Bernardo Couto. |i.. s.] MiGL. Atristax. [l. S.J And wherea« the said Treaty, as amended, has been duly ratified on both partH, and the respective ratifications of the same were exchanged at Queretaro on the tliirtieth day of May last, by Ambrose H. Sevier and Nathan Clifford, ronuiiiHsicnjci-H on iho i)art of the goveniment of the United States, and by Sefior Df>n Luis de \n Rosa, minister of relations of the Mexican Republic, on the part of that goveniment : Now, tlierefore, Ix; it known, that I, James K. Polk, President of the United States of ^Vouerica, have caused the said Treaty ^to be made public, to the end 32 TREATY OF GUADALUPE HIDALGO. xiv-xv that the same and every clause and article thereof may he ohservcd and fidlillod %Yith good faith by the United States and the citizens thereof. In witness whereof, I have hereunto set my hand and caused the seal of the United States to be affixed. Done at the city of Washington, this fourth day of July, one thousand [l. s.] eight hundred and forty-eight, and of the Independence of the United States the seventv-third. JA^IES K. POLK. By the President: James Buchanan, Secretary of State. 3^rtidc0 xtkxxth to in tl)c Jifteeiitlj ^rtjdc of tljc iUtrci^ing orratij. EIRST AND FIFTH ARTICLES OF THE UNRATIFIED CONVENTION BETWEEN THE UNITED STATES AND THE MEXICAN REPUB- LIC, OF THE 20th NOVEMBER, 1843. ARTICLE I. XV. Commissioners of claims. All claims of citizens of the Mexican Republic against the government of the United States, which shall be presented in the manner and time hereinafter ex- pressed, and all claims of citizens of the United States agains-t the government of the Mexican Republic, whi(;h for whatever cause were not submitted to, nor considered nor linally decided by, the commission, nor by the arbiter appointed by the convention of 1839, and which shall be presented in the manner and time hereinafter specified, shall be referred to four commissioners, who shall form a board, and shall be a2)pointed in the following manner, that is to say: Two commissioners shall be appointed by the president of the Mexican Repub- lic, and the other two by the president of the United States, with the approbation and consent of the senate. The said commissioners, thus ajipointed, shall, in the presence of each other, take an oath to examine and decide impartially the claims submitted to them, and Avhich may lawfully be considered, according to the proofs which shall be presented, the jirincijjles of right and justice, the law of nations, and the treaties between the two republics. ARTICLE V. Umpire. All claims of citizens of the United States against the government of the Mex- ican Republic, which were considered by the commissioners, and refeiTcd to the umpire appointed under the convention of the eleventh April, 1839, and which were not decided by him, shall be referred to, and decided by, the umpire to be ai^pointed, as provided by this convention, on the points submitted to the f mpire under the late convention, and his decision shall be final and conclusive. It is also agreed that, if the respective commissioners shall deem it expedient, they may submit to the said arbiter new arguments upon the said claims. 3 33 iirocliiiiialioiio to tl)c ilco^ilc of (Talifonna. jJvaclamatioUt CALLINCi A CONVENTION TO FORM A STATE CONSTITUTION FOR CALIFORNIA. xvi. Character of General Riley's adminMrafion — Mexican laws in force — Con- vention for State Constitution. Congress lla^ing failed, at its recent session, to iDrovide a new g-overament for this fountiy, to replace that which existed on the annexation of California to the United States, the undersigned would call attention to the means which he deems Ijest calculated to avoid the embaiTassments of our present position. The undersigned, in accordance with instructions from the secretary of war, has assumed the administration of ciA'il affairs in California, not as a militaiy governor, but as the executive of the existing civil government. In the absence of a properly appointed civil governor, the coinnianding* officer of the depart- ment is, by the laws of California, ex officio civil governor of the countiy, and the instnictious from "Washington were based on the provisions of these laws. This subject has been misrepresented, or at least misconceived, and currency ffiven to the impression that the government of the countiy is still military. Such is not the fact. The military government ended with the war, and what remaiiiK is the civil government recognized in the existing laws of California. Although the command of the troops in this department, and the administration of civil ufl'aii-s in Califcn-nia, are, by the existing laws of the country, and the instructions of the president of the United States, temporarily lodged in the huinls of the same individual, they are separate and distinct. No military oflicer, otlier than the comnumding general of the department, exercises any civil authority by virtue of his military commission, and the powers of the com- manding g«nera], as ex officio governor, are only such as are defined and recog- nized in the existing laws. The instructions of the secretaiy of war make it the duty of all military officers to recognize the existing civil government, and to aid itK officei-H with the military f(jrce under their control. Beyond this, any interference in not only uncalled for, l)ut strictly forl)idden. Tli<- laws of Ciilifornia, not inconsistent with the laAVS, constitution, and treaties of the United States, are still in fcn-ce, and must continue in force until changed by competent authority. Whatever may be thought of the right of the peoph' to temporarily replace tlie officers of the existing government by others apjioiiited by a provisional territorial legislature, there can be no (question that the existing laws of the conntrv must continue in force till replaced by others made and enacted by competent power. That power, by the treaty of peace, as well n« from the nature of the case, is vested in congiess. The situation of California, in this respect, is very different from Ihid of Oregon. The latter PKOCLAMATIONS TO THE PEOPLE OF CALIFORNIA. xvi vras Avitliout laws, while the former has a system of laws, Avhieh, though sojne- what defective, aiul reciiiiring many changes and amendments, mnst continue in force till rejoealed by competent legislative power. The situation of California is almost identical with that of Louisiana; and the decisions of the supreme court, in recognizing the A^alidity of the laws which existed in that countn- pre- vious to its annexation to the United States, where not inconsistent with the constitution and laws of the United States, or repealed by legitimate legislatiA-e enactments, furnish us a clear and safe guide in our present situation. It is important that citizens should understand this fact, so as not to endanger their 2:)roperty and involve themselves in useless and expensive litigation, by giving countenance to persons claiming authority which is not given them by law, and by putting faith in laws which can never be recognized by legitimate courts. As congress has failed to organize a new territorial government, it becomes our imperative duty to take some active measures to provide for the existing ■wants of the country. This, it is thought, may be best accomplished by putting in full vigor the administration of the laws as they now exist, and completing the organization of the civil government, by the election and appointment of all officers recognized by law; while, at the same time, a convention, in which all parts of the territory are i-epresented, shall meet and frame a state constitution, or a territorial organization, to be submitted to the people for their ratifica- tion, and then proposed to congress for its approval. Considerable time will necessarily elapse before any new government can be legitimately organized and 2)ut in operation; in the interim, the existing government, if its organization be completed, will be found sufficient for all our temporary wants. A brief summary of the organization of the present government may not be uninteresting. It consists: 1. Of a governor, appointed by the supreme gov- ernment: in default of such appointment, the office is temporarily vested in the commanding military officer of the department. The powers and duties of the governor are of a limited character, but fully defined and pointed out by the laws. 2. A secretary, whose duties and powers are also properly defined. 3. A territorial or departmental legislature, with limited power to pass laws of a local character. 4. A superior court (tribunal superior) of the territory, consisting of four judges and a fiscal. 5. A prefect and sub-prefects for each district, who are charged with the preservation of public order and the execution of the laws ; their duties correspond, in a great measiu'e, with those of district marshals and sheriffs. 6. A judge of first instance for each district. This office is, by a custom not inconsistent with the laws, vested in the first alcalde of the district. 7. Alcaldes who have concurrent jurisdiction among themselves in the same district, but are subordinate to the higher judicial tribunals. 8. Local justices of the peace. 9. Ayuntamientos, or town councils. The powers and functions of all these officers are fully defined in the laws of this country, and are almost identical with those of the corresponding offices in the Atlantic and western states. In order to complete this organization with the least possil:)le delay, the under- signed, in virtue of power in him vested, does hereby appoint the first of August next as the day for holding a special election for delegates to a general conven- tion, and for filling the offices of judges of the sui:)erior court, prefects and siib- prefects, and all vacancies in the offices of first alcalde (or judge of first instance), alcaldes, justices of the peace, and town councils. The judges of the siiperior court, and district prefects, are by law executive appointments, liut being desirous that the wishes of the people should be fully consulted, the gov- ernor will appoint such persons as may receive the plurality of votes in their respective districts, provided they are competent and eligible to the office. Each district will therefore elect a prefect and two sub-prefects, and fill the vacancies in the offices of first alcalde (or judge of first instance) and of alcaldes. One 35 xvi PROCLAMATIONS TO THE PEOPLE OF CALIFORNIA. jiulfre of the superior court will be elected in the districts of San Diego, Los Auj,'eles and Santa Barbara; one in the districts of San Luis Obispo and Mon- terey; one in the districts of San Jose and San Francisco; and one in the districts of Sonoma, Sacramento and San Joaquin. Tlie salaries of tlie judfjes of the superior eouii, the prefects and judges of first instance, are rt^gulated by the governor, but cannot exceed, for the first, four thousand dollars per annum; for the second, two thousand five hundred dollai-s, and for the third, one thousand live hundred dollai-s. These sahuies Avill be paid out of the civil fund which has l»een formed from the proceeds of the customs, provided no instructions to the fonti-ary are received from "Washington. The laAV requires that the judges of the sujjerior court meet Avithin three months after its organization, and form a tariff of fees for the difterent territorial courts and legal officers, including all alcaldes, justices of the peace, sheriffs, constal)les, etc. All local alcaldes, justices of the peace, and members of town councils elected at the special election, will continue in office till the first January, one thousand eiglit hundred and fifty, when theu- j^laces will be supplied by the pereons who mav l>e elected at the regular annual election, which takes place in November, at \\ hic'h time the election of members to the territorial assembly will also be held. The general convention for f oraiing a state constitution or a plan for territorial g«»veniment, will consist of thirty-seven delegates, who will meet in Monterey on the fii*st day of September next. These delegatts Arill be chosen as follows: — The district of San Diego will elect two delegates, of Los Angeles four, of .Santa Barbara two, of San Luis Obispo two, of Monterey five, of San Jose five, of San Francisco five, of Sonoma -four, of Sacramento four, of San Joaquin four. Should any district think itself entitled to a greater number of delegates than the above named, it may elect supernumeraries, who, on the organization of the convention, will be admitted or not at the i)leasure of that body. The places for holding the election will be as follows: San Diego, San Juan Capistrano, Los Angeles, San Fernando, San Buenaventura, Santa Barbara, Nepoma. San Luis Obispo, Monterey, San Juan Baptiste, Santa Cruz, San Jose ill- (Juadeluije, San Francisco, San Rafael, Bodega, Sonoma, Benicia (the places for holding election in the Sacramento and San Joaquin districts will be here- after designated). The local alcaldes and members of the ayuntamientos or t'jwn councils, will act as judges and inspectors of elections. In case there should be less than three such judges and inspectors present at each of the phu-cH designiatod on the day of election, tlie people will appoint some comj^e- tent person to fill the vacancies. The polls will l)c open from ten o'clock a. si. to four i: M., or until sunset, if the judges deem it necessary. Every free male citizen of the Fnited States and of Upper California, tw^enty- f vEW executive having been elected and installed into office, in accordance with the provisions of the constitution of the State, the undersigned hereby resigns his powers as governor of California. In thus dissolving his official con- nection with the people of this country, he would tender to them his heartfelt thanks for their many kind attentions, and for the uniform sup2:)ort which they have given to the measures of his administration. The principal object of all his wishes is now^ accomplished — the jjeople have a government of their own choice, and one which, under the favor of Divine Pi'ovidence, will secure their own prosjierity and happiness, and the permanent welfare of the new state. Given at San Jose, California, this twentieth day of December, a. d. one thousand eight hundi'ed and fortv-nine. B. RILEY, Brevet Brig. -Gen. U. S. A., and Governor of California. By the Governor: H. W. H.u.leck, Brevet Capt, and Secretary of State. xix. RelinquisJimoil of mililary to cicil governvn^t. [OlSDKES No. 41.") HEADQUABTEIta TeWTH JIiLITABT DEPARTMENT, San Jose, Califok.nia, Dec. 20, )849. 1. Tlie brigadier-general commanding the department has this day relin- (juishcd the administration of civil affaii-s in California, to the execution of the government organized under the provisions of the constitution, ratified by the people of California at the recent general election. 2. Brevet Cai:)tain H. W. Halleck, coq^s of engineers, is relieved from duty as seci'etary of state. By order of GENERAL RILEY. Ed. U. S. Canby, Assistant Adjutant-General. 38 (fon^titutioi! of tlje State of (faljforuia. Adopted by the Convention, 10th October, 1849. Batified by the People, 13th November, 1S49. Proclaimed, 20th December, 1849. Amended, 4th November, 1850, ajid 3d September, 1862. XX. Preamble. We, the people of California, gi-ateful to Almighty God for om- freedom, in order to secure its blessings, do establish this Constitution. ARTICLE I. DECLARATION OF BIGHTS. Inalienable riglds. Section 1. All men are by nature free and independent, and have certain inalienable rights, among which are tliose of enjoying and defending life and liberty; acqniiing, possessing, and protecting ]3ro2)erty, and j^ursuing and ob- taining safety and happiness.^ *^ Popular government. Sec. 2. All political power is inherent in the people. Government is insti- tuted for the jDrotection, security, and benefit of the people, and they have the light to alter or reform the same whenever the jJublic good may requii-e it. Jury trial. Sec 3. The right of trial by jmy shall he secured to all, and remain invio- late forever; but a jury trial may be waived by the parties, in all civil cases, in the manner to be prescribed by law.'"^ Religious xvorship, and liberty o/ conscience. Sec. 4. The free exercise and enjoyment of religious profession and worshij?, "without disciimination or preference, shall forever be allowed in this State;'"* and no person shall be rendered incompetent to be a witness on account of his opinions on matters of religious belief;'"^' but the libert}' of conscience hereby secui-ed shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this State. (a) The "Sunday Law " of April 10, 1858, held to is caUed, it must consist of twelve perpons: alessnum- be in violation of this section. Ex parte Newman, 9 her does not constitute a legal jury ^vithout express con- Cal. 502. sent. Oillesjiie vs. Benson, 18 Cal. 40'J. The " Sunday Law " of May 20, 1861, held to be not A court has no jiower to send an ordinary suit at law in violation of this section; and the dissenting opinion to a reterec for trial against the objection of either par- of Justice Field in Ex parte Newman aiioiHed. Ex parte ty; and this whether the suit involves the exaniinatiou Andrews. 18 Cal. G78. of a long account or not. Our statute as to referring (6) The right to a jury trial cannot be waived by im- cases (except in cases of consent) applies solely to equity plication. Smith vs. Pollock. 2 Cal. 92. causes. Grim vs. Norris, 19 Cal. 1-JH. A reference to ascertain the damages sustained by (c) The " Siuulay Law" of I.S.i.h held to violate this reason of an injunction does not \-iolate this section: provision on the gi-oinul tliat it involved the ei. forced the party availing himself of the stringent and extra- observance of a day held saci ed by a religious 8>-ct and ordinai-y process of injunction is considered as waiving was a discrimination in favor of that sect and a viola- his constitutional right to a jury trial. Kussell vs. Elli- tion of the religious freedom of others. Ex parte New- ott, 2 Cal. 245. man, 9 Cal. 502. The words " prescribed by law " look to actual legis- 'J he " Sunday Law " of 1861 (substantially similar to lation iipon the subject, and cannot be extended to a that of 18581 hild purely a ciWl ngulation. not designed permission of the exercise of the power to others than to subserve any religious purpose . Held furthir. th.it the legislature Exliue vs. Smith, 5 Cal 112. the constitution does not make void legislation, the ef- The language of this provision was used with refer- feet of which is to iironn te religion or even advance ence to the right as it exists at common law. The right the interests of a sect or class of religionists. Ex parte cannot be claimed in equity cases unless an issue of Andrews, 1m Cal. 678. fact be framed. Koppikus vs. State Capitol Conimis- (d) A witness is competent without respect to bis re- sioners. 16 Cal. 248. ligious sentiments or conviction- the law leaving his Failure on the part of a party to appear on the trial competency to legal sanctions or at least to considera- of a civil cause operates as a waiver of a jury trial un- tions independent of religious sentiments or convic- der the li9th section of the practice act; but if a jury tions. Fuller vs. Fuller, 17 Cal. 005. 39 xxi CONSTITUTION OF THE STATE OF CALIFOKNIA. xxi. Habea.^ co)-2)us. Sec. 5. The privilege of the writ of habeas corpus shall not be susiDended, unless Avhen, in cases of rebellion or invasion, the public safety may require its suspension.'"^ Exceiisive bail,Jines, cmd 2^uni)^]i7ncnts. Sec. G. Excessive bail shall not be required, nor excessive fines imposed; nor shall cruel or unusual punishments be inflicted; nor shall witnesses be unrep,- sonably detained. All offenses bailable — one exception. Sec 7, All persons shall be bailable by sufficient sureties, unless for capital offenses when the proof is evident or the presumption gi'eat/"^ Personal rights and rights of property. Sec. 8. No person shall be held to answer for a capital or otherwise infamous crime (except in cases of impeachment, and in cases of militia when in actual service, and the land and naval forces in time of war, or which this state may keep, with the consent of cong'ress, in time of peace, and in cases of petty larceny, under the regailation of the legislature), unless on presentment or indictment of a grand jury;'"^ and, in n.\\j trial in any court w^iatever, the party accused shall be allowed to appear and defend, in pei-son and with counsel, as in civil actions."^' No person shall be subject to be twice put in jeopardy for the same offense;'*"^ nor shall he be compelled, in any criminal case, to be a wit- ness against himself ;^'> nor be deprived of life, liberty or i^roperty without due process of law,'^' nor shall private property be taken for public use wdthout just compensation.'"^ (a) The vivit of habeas corpus should not issue to run out of the county, unless for good cause shown, as the abKence, disability or refusal of the local judge to act. The mere caprice of the prisoner ought cot to prevail agaiust the interests of the people and public cou\enience. Ex parte Ellis, 11 Cal. 'll'l. 'Ihe issuance of the writ is not obligatory upon the supreme court in term time, but rests in the sound legal discretion of the court, ihough its allowance may be obligatory upon the judges in their individual ca- pacities. Id. (6) Admissi >u to bail in capital cases, where the proof is evident or the presumx)tioii gi-eat, may be for- bidden by legislation; but in all other c:ises, admission to bail is a right which no judge or court can xjroperly refuse. People vs. Tinder, li) Cal. 539. The provii-ion tliat bail is a initter of right contem- plates only those cases in which the jiarty has not been alreidy convicted. Ex parte Voll, 41 Cal. 'i9 ((•) The 273d section of the criminal jjiMctice act, directing that where a person is indicted under a wrong name, and he gives )jis true name, it shall be entered on tlie minutes and the ijrisoner tried under his true uaiiie (see Penal Code, sec. iis'.)), is not a violaticm of tills clause. The meaning of this provision is that the jierson shall be indicted, not the person by his tiue name, but the person himself. People vs. Kelly, 6 Cal 210. 'J he grand jury should be constituted according to law, but the objectinu that it is not so constituted must be made at the particular time provided by statute. The legislature may cipiistitulionally prescribe rules of practice, aud among these is the provision as to the lime aud mofle of excepting to in-egulariiies of pro- ceeding. People \f>. Arno d, l.") Cal. 47G. { ry extraonlinary and peculiar iiiBiaur-es. The opportunity of a full defense is a con- stitutional right without which a prisoner cann')t be lawfully con\ii-ted. I'eople vs. Kei-nan, 13 Cal. 581. (') On a Hecnnd trial for murder upon tlie same or a differi nt indictment, defendant <• m phail a conviction of manslauglitcr as an acquittal of the crime of murder. A conviction of mauslaugliter is an iicijuittal of every offense charged in tli<; indictment higher than the par- ticular one of which the prisoner is found guilty. People vs. Gilmore, 4 Cal. 37C. Tiiis provision was never intended to apply to cases in which a judgment of conviction was reveraed in the oppellate court and a new trial ordered. In such cases, it bein^ apparent from the judgment of reversal that such trial was erroneous, the defendant in fact was not in jeopardy. The order for a new trial places the party in the same i)osition as though no trial had betn had. People vs. March, fi Cal. 543. Where uixju a previous trial it turned out that there was a uii>nomer of the party injured, aud thereupon the indictment was discharged and the new indictment found: Held, that the accused was not jjlaced twice iu jeopardy. It would be a coutradiciiou in terms to say that a person was put in jeopardy by an indictment under which he could not be con\irtcd, and it is ob- viously immaterial wliether the iuability to convict arise fi-om a vaiiance between the proof and indict- ment or from some defect in the indictment. People vs. McNeily, 17 Cal. 332. If a person charged with crime has once been ae- qui ttd by the veraict of a jury he cannot be held to answer again for the same ofl'ense, no matter by what mistakes or errors on the part of the court, jury or prosecution the acquittal was obtained. People VS'. Webb, 38 Cal. 407. When a iierson is placed on trial upon a valid indict- ment before a competent court and jury, he is " iu jeopardy" within the meaning of the constitution. People vs. Cage, 4S! Cal. 323. (/) A witness is not privileged from answering on the ground that his answer would disgrace him, but Solely on the ground that he is not compelled to crim- inate himself. Ex parte Howe, 7 Cal. 184. [ij) The provisions of the 31st section of the practi^-e act authorizing judgment against an absent defendant, fur whom the cotirt has apiiointed an attorney with lirivilege of coming and opening it in six months, is not in violation of this clause. Ware vs. Robinson, 9 Cal. 107. The riyht to i)ractice law is not " pr^jperty" within the constitutional meaning of the term. The act of 25th April. 1803, nquiring attorneys and litigants to file affidavits of allegiance to the government, does not contravene this provision. Cohen vs. Wright, 22 Cal, 2U3. Tills provision is not applicable to proceedings by the state to obtain from citizens their proper contribu- tions to the expenses of administering the govermnent. High vs. Slioemaker, 22 Cal. 303. (A) The destruction of a building to stop the spread of a conflagration cannot bo deemed a taking of private property for i)ublic use within the meaning of this clause. Dunbar vs. San Francisco, 1 Cal. 355. A lot of land in the harbor of San Francisco, lying within the line of a street laid down aud recognized by 40 CONSTITUTION OF THE STATE OF CALIFORNIA, xxi-xxii Liberty of speech and press, and law of libel. Sec. 9. Every citizen may freely si^eak, write, and puLlinli his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be 2)assed to restrain or abridge the liberty of speech or of the press. In all crim- inal prosecutions on indictments for libels, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives and for justifiable ends, the party sh'all be acquitted; and the jury shall have the right to determine the law and the fact. xxii. Popular assemblies. Sec. 10. The people shall have the right freely to assemble together to con- sult for the common good, to instruct their representatives, and to petition the legislature for redress of grievances. Uniformitij of general laivs. Sec. 11. All laws of a general nature shall have a uniform operation. ^"^ tlie city on its oSicial map, and being in the actual pos- eessioii of a person claiming lo be the owner, cannot be tHken and appropriated to public use by the city without payment of just compensation, there being no title t') the land in the city. Gunti-r vs. Geary, 1 Cal. 4U2; Surocco vs. Geary, 3 Cal. 09. Where i)rivate property is appropriated to public use by supervisors, without makiug proviyion for paying for tlie same, such act is illegal and may be enjoined. Mc( ann vs. Sierra County, 7 Cal. 12!. Parties in possession of land claiming title thereto are presumed to be the owners, and are entitled to com- pensation before it can be taken for public uses. Sac- rame..to Valley Kailroad Company vs. Mofl'att, 7 Cal. 577. A municipal corporation cannot take private property for public use without makiug compensation in ad- vance or providing a fund out of which compensation shall be made as soon as the amount to be paid can be determined. Colton vs. Kossi, 9 Cal. 59.5. The means of compensating the owner must be pro- vided before the property is taken. McCauley vs. AVeller. 12 Cal. &00; Bensley vs. Moimtain Lake Water Company, 13 Cal. 306. Where compensation for land taken by a county for IJublic use does not precede or accompany the taking, the entire action of the county authorities is void; and in such case a .'. civil action for assault and battery. Ex parte Prader, .\n alien may purchase and hold land and make leases C Cal. 2;i9. and sustain actions till "ollice found, "and proof of his {Ij) The act of April 15, 1851, re-incorporating the city alienage cannot be made available in a collateral yro- of Han Francisco, did not extinguisli the debts of the ceeding. Ramires vs. Kent, 2 Cal. 558. city incujTi.d under the former charter, nor did its prop- An alien may hold real estate against every one and erty escheat to the state. An act passed with such in- even against the government until " office found." At- tention would be unconstitutional. Smith vs. Morse, 2 torney General vs. Eolsom, 5 Cal. 373. Cal. 524. Held that a non-resident alien cannot inherit land in The suspension by statute of remedies or any part this state. Siemsen vs. Bofi;r, Cal. 250; Norrisvs. Hoyt, thereof existing when the contract was made is more 18 Cal. 217. or less impairing the obligation of the contract. Thome This section leaves the right of non-resident foreign- vs. Hays, 4 Cal. 127. era in respect to real properly as it exists at common The 4Ist section of the act concerning conveyances, law. Farrell vs. Enriglit, 12 Cal 450. requiring conveyances made before the passage of the The act of April 19, 185fi, permitting non-resident act to be recorded, does not imi)air the obligation of a alicn.s to inherit, is constitutional; and the right of contract. Stafford vs. Lick, 7 Cal. 47U. bona fide resident aliens maybe enlarged but cannot The jirovisioiiB of the " Corisolidation Act" of San be abridged by the legislature. People vs. Kogers, 13 Francisco, requiring the sinking fund <-reated by act of Cal. 1.59. 1851 to be first exhausted by redemption of certificates By virtue of its police power the state possesses juris- of stock, bifore the treasurer should make payment diction to arrest and restrain fugitive slaves and to re- annually of .?50,000, set apart by act of 1851 for payment move them from its borders, but not so as to obstruct of interest, etc.. are unconstitutional as violating a the owner in reclaiming his slave. Ex parte Perliius, 2 contract. Tullant vs. Woods, 7 Cal. 579. Cal. 424. This provision in regard to contracts relates to con- The dtion whether certain territory of an adjoining county shall be annexed to it and that if such vote should be in the afhrmative the adjoining county should be disorganized and the territory annexed, is not unconstitutional. People vs. Nally, 49 Cal. 478. (c) Tlie original secticm was as follows: Skc. 2. The sessions of the legislature shall be annual, and shall commence on tlie first Monday of January, next ensuing the election of its members, unless the governor of the state sliall, in the interim, convene the legislature by proclamation. 44 CONSTITUTION OF THE STATE OP CALIFORNIA, xxvii-xxix Election and terms of assemblymen. Sec. 3. The members of tlie assembly shall be chosen biennially, by tlio qi-ialified electors of their respective districts, on the first "Wednesday in Sep- tember, unless otherwise ordered by the legislature, and their term of otKco shall be two years. [Amendment, proposed 1861; ratified ^d September, 1802.*"' QtinlificatioviS of leijii^lators. Sec. 4. Senators and memT)ers of assembly shall be duly qualified electors in the respective counties and districts which they represent. xxviii. Election and ter^ms of senators. Sec. 5. Senators shall be chosen for the term of four years, at the same time and places as members of assembly; and no person shall be a member of the senate, or assembly, who has not been a citizen and inhabitant of the State, and of the county, or district, for which he shall be chosen, one year next before his election. [Amendmejit, proposed 1861 ; ratified Sd September, 1862.*''' Number and classes of senato7's. Sec. 0. The number of senators shall not be less than one third, nor more than one half, of that of the members of assembly; and at the first session of the legi.slature after this section takes efiect, the senators shall be divided by lot, as equally as may be, into two classes. The seats of the senators of the first class shall be vacated at the expiration of the second year, so that one half shall be chosen biennially. [Amendmeiit, proposed 1861 ; ratified 'dd September , 1862.*"' Increase in number. Sec. 7. When the number of senators is increased, they shall be appointed by lot, so as to keep the two classes as nearly equal in number as possible. Organization of legislative houses. Sec. 8. Each house shall choose its own officers, and judge of the qualifica- tions, elections, and returns of its own members. Quorum. Sec. 9. A majority of each house shall constitute a quoram to do biisiness; but a smaller number may adjourn from day to day, and may compel the attend- ance of absent members, in such manner, and under such penalties, as each house may provide. xxix. Rules — Expxdsions. Sec. 10. Each house shall determine the rules of its own proceedings, and may, with the concurrence of two thirds of all the members elected, expel a member. Journals. Sec. 11. Each house shall keejj a journal of its own proceedings, and pub- lish the same; and the yeas and nays of the members of either house, on any question, shall, at the desire of any three members present, be entered on the journal. Privileges of legislators. Sec. 12. Members of the legislature shall, in all cases except treason, felony, and brejich of the peace, be privileged from arrest, and the}' shall not be sub- fa) Original section: vhich he shall be chosen six months next before his Sec. 3. The members of the assembly shall be choRen election, annually, by the qualified electors of their respective (r) Original section: districts, on the Tuesday next after the firt-t Monday Sec. C. The number of senators shall not be less in November, imless otherwise ordered by the legisla- than one third, nor more tlian one half, of that of the ture, and their term of office shall be one year. members of assembly; and at the first session of the (b) Original section: legislature after iliis couftitution tai-es eflect, the sen- Sec. 5. Senators shall be chosen for the term of two ntors shall be divided by lot as equally as may be, into years, at the same time and places as members of as- two classes; the seats of the senators of the first class sembly; and no person shallbe a member of the senate shall be vacati d at the expiration of the first year, so or assembly who has not been a citizen and inhabitant that one half shall be chosen annually, of the state one year, ^nd of the county or district for 45 xxix-sxx CONSTITUTION OF THE STATE OF CALIFORNIA. ject to any civil process during- the session of tlie legislature, nor for fifteen days next before the commencement and after the termination of each session. Vacancies. Sec. 13. When vacancies occur in either house, the governor, or the person exercising the functions of the governor, shall issue writs of elections to fill such vacancies. Open doors. Sec. 14. The doors of each house shall be open, except on such occasions as, in the opinion of the house, may require secrecy. XXX. Adjournments. Sec. 15. Neither house shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which they may be sitting. Origination of bills. Sec 16. Any bill may originate in either house of the legislature, and all bills passed by one house may be amended in the other. Governor's approval — Passage of bills notwithstanding governor's objections. Sec. 17. Every bill which may have passed the legislature, shall, before it becomes a law, be presented to the governor. If he approve it, he shall sign it; but if not, he shall return it, with his objections, to the house in which it originated, which shall enter the same upon the journal, and proceed to recon- sider it. If, after such reconsideration, it again pass both houses, by yeas and nays, by a majority of two thirds of the members of each house present, it shall become a law, notwithstanding the governor's objections. If any bill shall not be returned within ten days after it shall have been presented to him (Sun- days excepted), the same shall be a law, in like manner as if he had signed it, unless the legislature, by adjournment, prevent such return. ^"^ Impeachments. Sec 18. The assembly shall have the sole poAver of impeachment; and all impeachments shall be tried b}' the senate. When sitting for that purpose, the senatoi's shall be upon oath or affirmation; and no j^erson shall be convicted, without the concurrence of two thirds of the members present. Officers liable to impeachment — Judgment. Sec. 19. The governor, lieutenant-governor, secretaiy of state, controller, treasurer, attorney-general, surveyor-general, justices of the supreme coui-t, and judges of the district courts, shall be liable to imiieachment for any mis- demeancn' in ofiice; but judgment in such cases shall extend only to removal from office, and disqualification to hold any ofiice of honor, trust, or profit, under the state; but the party convicted or acquitted shall nevertheless be liable to indictment, trial, and punishment, according to law. All other civil oflicers shall be tried, for misdemeanors in ofiice, in such a manner as the legislature may provide. (o) The court may go behind the record evidence of which the bill Is presented to the governor. Price vs. a fstattitc, and inquire whether it was passed or ap- Whitman, H Cal. 412. proved in accordance with the conBtitufion. Fowler Wlicre the governor Kcut a bill with his objections to vs. Peircc, 2 Cal. Ifi.'i. the house in wliich it orlj^'iuated on tlie last of the tea In approving a statute, the executive acts as a com- days, and, on ac(;ouiit of an adjournment of the house pon»*nt \>hrt of the law-malting power, and his power for the day, tlie bill was re-delivered to tlie (,'overnor of aijproval ceases on the adjournment of the legis- and retained by him: Held, that it was not returned latui c. Id within ten dajH « ithin the meaning? ol the constitution. In nearly all the printed copies of the constitution HarpenditiK vk. Haight, '.i'J Cal. IW). there is a mistake in the omission of the final leiter In computing the tiu days witliin which a bill may " s" in the word " Sundays." 'I he erroneous decisirm be returned by the governor, the day on which it is in Hepburn vs. Whitman, Cal. (i.i'.), was based upon jirif-cutcd to the governor must be excluded. Iron this mistake. See I'rice vs. Whitman. 8 Cal. 412. The Mountain Co. vs. Haight, 30 Cal. 54(J. ten days must be computed by excluding the day on 4G CONSTITUTION OF THE STATE OF CALIFORNIA, xxxi-xxxii xxxi, DisahiUdes of Icgidalors. Sec. 20. No senator, or member of assembly, shall, during the term for which he shall have been elected, be appointed to any civil office of profit, under this state, which shall have been created, or the emoluments of which shall have been increased, during such term, except such o£&ce as may be filled by elections by the people. Ineligibility to office — Proviso. Sf.c. 21. No person holding any lucrative office luider the United States, or any other power, shall be eligible to any civil office of profit under this state; provided, that officers in the militia, to which there is attached no annual salaiy, or local officers and postmasters whose compensation does not exceed five hun- dred dollars per annum, shall not be deemed^ lucrative.'"' Embezzlement — Defalcation of public funds . Sec. 22. No person who shall be convicted of the embezzlement, or defalca- tion, of the public funds of this state, shall ever be eligible to any office of honor, trust, or profit under this state; and the legislature shall, as soon as practicable, pass a law providing for the punishment of such embezzlement, or defalcation, as a felony. Public moneys and accounts. Sec. 23. No money shall be drawn from the treasuiy but in consequence of appropriations made by law.'**' An accurate statement of the receipts and expenditures of the public moneys shall be attached to and published with the laws at eveiy regular session of the legislature. Compensation. Sec. 24. The members of the legislature shall receive for their services a com- pensation to be fixed by law, and paid out of the public treasury; but no increase of the compensation shall take effect during the term for which the members of either house shall have been elected. xxxii. Title of laws — Bevision and amendment of laics. Sec. 25. Every law enacted by the legislature shall embrace but one object, and that shall be expressed in the title,'"* and no law shall be revised, or amended, by reference to this title; but in such case, the act revised, or section amended, shall be re-enacted and published at length."*' Divorces. Sec. 2G. No divorce shall be granted by the legislature. {n) The Federal office of siirveyor-genfral is a lucra- (c) A law is constitutional where the eulijects em- tive office, and the office of controller of state an office braced in the same statute and not expressed in the of profit. Melony vs. Whitman, lu Cal. 38. title have congniity or proper connection. De Witt vs. To constitute a " holding" there must be a concur- San Francisco, 2 Cal. 'IH'-.K rence of two wills, that of the appointing pov.'cr and This provision is merely directory. Washington vs. that of the person appointed. Id. Page, i Cal. 388; Pierpont vs. Cronch, 10 Cal. 3\o. The W'.rd '■ eligible' means capable of being chosen. A law "to regulate fees," which provides for the A person holding a lucrative federal office cannot re- amount of fees and at the same lime that a part of such ceive votis cast so as to give him a right to take the fees shall be paid into the treasury is uot objectionable state office uijou or after resigning the federal office, as embracing more than one object and that not ex- Searcy vs. Grow, 15 Cal. 117. pressed in the title. Beam vs. Siskijou County, b6 Cal. The term " compensation" means the income of the 620. office, not the profit over and above tUe necessary ex- (d) Tlie amendment of a statute operates as an abso- penses. Id. lute repeal of the old statute or section amended, even A 1)1 rson who held and discharged the duties of In- if the amendm< ut takes nothing away from the old law, specter of customs of the I'nited States under appoint- but merely adds a proviso in certain cases, billings vs. ment of the collector at San Francisco, but whose ap- Harvey, (5 Cal. 381. pointment was never approved by the secretary of the Where a law enters into and becomes a part of a con- treasurj-; Held not to be ineligible to the office of dis- tract, it caiinot oe so altered or amended as to impair trict judge. People vs. Turner, 20 Cal. 1-12. or destroy the righls of the parties. Smith vs. Curils, {h) The power of controlling and dis|iosing of the 7 Cal .584. revenue of the state is vested in the legislature. It is A st itute may be repealed by implication ; and where within the power of the judiciary to declare the action a subsequent aoses. Low vs. Marysville, i> Cal. 'iI4. (c) As to the power of the legislature to regulate the Exdu.'-ive franchises and privileges may be conferred individual liability of stockholders in corporations, by the legislature ui)on persons or corporations. Cali- see R 'J8. the constitution and as a portion of section .'ill to this An act which purports on its face to be and is in article the abrogation and annulling of sections 32 and fact a special act, cannot be converted into a general 'Mi; but the proposition was not adopted by the legisla- act by a declaration of the legislature in anothi r act turo of 1802. See Statutes of 1801, Ul;2, and Statutes of that it shall be considered a general act. San Francisco 1802, 582. vs. Spring Valley W. \\ ., 48 Cal. 4U3. 48 CONSTITUTION OF THE STATE OF CALIFORNIA, xxxiii-xxxv privileges of corporations not possessed by individuals or ])artncrsliips. And all corporations shall have tlie right to sue, and shall be suljject to l)e sued, iu all courts, in like cases as natural persons. Baiild^ and bank circulafion. Sec. 34. The legislature shall have no power to pass any act granting any charter for banking purposes; but associations may be formed, under general laws, for the deposit of gold and silver, but no such association shall make, ii?sue, or put in circulation any bill, check, ticket, certificate, promissory note, or other paper, or the paper of any bank, to circulate as money. xxxiv. Banking privileges. Sec. 35. The legislatu,re of this state shall prohibit, by law, any person or persons, association, company, or corporation, fi'om exercising the privileges of banking, or creating paper to circulate as money. Individual liability of coryorators. Sec. 3G. Each stockholder of a corporation, or joint-stock association, shall be individually and personally liable for his proportion of all its debts and liabilities.*"^ Organization of cities and villages. Sec. 37. It shall be the duty of the legislature to provide for the organization of cities and incorporated villages, and to restrict their power of taxation, assessment, borrowing money, contracting debts, and loaning their credit, so as to prevent abuses in assessments and in contracting debts by such municipal corporations."'^ Legislative elections. Sec. 38. In all elections by the legislature, the members thereof shall vote viva voce, and the votes shall be entered on the journal. Effect of amendments. Sec. 39. In order that no inconvenience may result to the public service from the taking effect of the amendments proposed to Article Four hj the legislature of eighteen hundred and sixty-one, no officer shall be suspended or superseded thereby until the election and qualification of the several officers provided for in said amendments. [Amendment, proposed 18G1; ratified Zd September, 1862. AETICLE V. EXECUTIVE DEPARTMENT. XXXV. Governor. Section 1. The supreme executive power of this State shall be vested in a chief magistrate, who shall be styled the governor of the State of California. Election and term. Sec 2. The governor shall be elected by the qualified electors at the time and places of voting for members of the assembly, and shall hold his office four years from and after the first Monday in December subsequent to his election, (a) Legislation is necessary to give practical effect The fact that the legislature has once excrcisoil its to this provision, and without the aid of legislation it powers iu liuiitiug the extent of taxation iu luuuicipal is inoperative. Trench vs. Teschemaker, 24 Cal. 518. corporations does imt i revent llic l(;,'islaturefroni again [h) The proposed Central Pacific Raih-oad, leading exercisingitspower by enlarging the authority to tax. Id. from Sacramento, the easlern portion of the state, is so The legislature may authori/r a municipal corpora- far a public improvement and sufficiently for the appa- tion to pay claims invalid iu law, but equitable and rent iiiterest of Sacramento that a law authorizing the just in tliemselves. Id. municipality to become a stockholder i* i.ot unconsti- The words "taxation" and •' assessment " do not tutional. as imposing a tax upon a local community for have the same signification. The h gislature can have an improvement in which it has no peculiar inti-rest. nothing to do with the mode of enforcing the taxing Robinson vs. Hidwell, 22 Cal. 379. power, represented by the word " assessment," except The powers of a municipal corj^oration may be in- while working under this provision of the coustitutiou. creased, restricted or rejiealed by the legislature at Taylor vs. Palmer, 131 Cal. 240. Will, saving only vested rights. Blauding vs. Burr, 13 Cal. 343. 4 49 xxxv-xxxvii CONSTITUTION OF THE STATE OF CALIFOKNIA. and until his successor is elected and qualified. [Amendment, proposed 1861; ratified M September, 1862/"^ Qucdi/ications. Sec. 3. No person shall be eligible to the office of g-overnor (except at the first election) who has not been a citizen of the United States, and a resident of this State, two years next preceding the election, and attained the age of twenty- five years at the time of said election. Returns of election. Sec. 4. The returns of every election for governor shall be sealed up and transmitted to the seat of government, directed to the speaker of the assembly, who shall, during the first week of the session, open and publish them in pres- ence of both houses of the legislature. The person having the highest number of votes shall be governor; but in case any two or more have an equal and the highest number of votes, the legislature shall, by joint vote of both houses, choose one of said persons, so having an equal and the highest number of votes, for governor. xxxvi. Commander-in-chief ^ Sec. 5. The governor shall be commander-in-chief of the militia, the army and na^y of this State . Executive business. Sec. 6. He shall transact all executive business with the officers of govern- ment, civil and military, and may require information in writing from tlie ofiicers of the executive department, upon any subject relating to the duties of their respective offices. Execution of laws. Sec 7. He shall see that the laws are faithfully executed. Filling vacancies. Sec 8. "When any office shall, from any cause, become vacant, and no mode is provided by the constitution and laws for filling such vacancy, the governor shall have power to fill such vacancy by granting a commission, which shall expire at the end of the next session of the legislature, or at the next election by the people. ^"^ S2:>ecial sessions oflerjislature. Sec 9. He may, on extraordinaiy occasions, convene the legislature hy proc- lamation, and shall state to both houses, when assembled, the purpose for which they shall have been convened. xxxvii. Executive messages. Sec 10. He shall communicate by message, to the legislature, at every session, the condition of the state, and recommend such matters as he shall deem expedient. (a) Original Bection: As to what constitiites a vacancy, conBult Ryder vs. Sec. 2. The Koveruorghall be elected by the quaHfied Mlzuer. 7 Cal. .")1'.», and Aylett vs. Langdon. 8 Oal. 1. tIectorB, at the linie aud i. luces of voting for members A person appointed by the governor to fill a vacancy of assembly, and shall hold his office two years from in the office of superintendent of immigration for Sau the time of his iustallation and until his successor Francisco 1= entitled to hold until a new appointment shall be qualified. by the governor and senate The governor cannot, after (h) This jjower in the governor is limited by the the coimuission is issued, revoke it; and the appointee period when the people or the legislature can elect or CHniiot be disiurbcd until the office is filled pursuant appoint; on the arrival of which his power ceases, to statute. Wetherbee vs. Cazneau, 20 Cal. •'iOS. Casserly vs. !• itch, 1 Cal. 51'.». This section applies only to those cases of vacancies A constitutional officer cannot be divested of his of- for filling which no other mode is provided " by the flee otherwise than as prescribed by the constitution, constitution and laws," and has no ai)idicatioii to va- Doubt expre-sed as to whether the absence of a judge cancies the mode of filling wlii' h is provided by the trom the state is such a vacancy as can be supplied by law of April 28, 1H.">1, concerning ofiicers. Id. the executive. People vs. Wells, 2 Cal. 198. When th«re is a person in possession of nn office, Where there is a failure to fill an elective office on the who is expressly Huthori/.ed by statutes or constitution expirat.on of a term, though the incumbent holds un- to discharge its duties temporarily, till the electing or til his successor is appointed aud qualifies, the office appointing power can regularly act, tht^re is no vacancy becomes de jure vacant, aud can be filled by the gov- within th" meaning of the constitutional clause. Peo- emor. T.angdon vs. lieid, :> Cal. 2«b. pie vs. Tilton .u Cul. lUl. 50 CONSTITUTION OF THE STATE OF CALIFORNIA, xxxvii-xxxviii Adjournment of legislature. Sec. 11. In case of a disagreement between the two houses, with respect to the time of adjournment, the governor shall have power to adjourn the legis- lature to such time as he may think proper; provided it be not bejond tlie time fixed for the meeting of the next legislature. Dis^ahilities. Sec. 12. No person shall, while holding any office under the United States, or tins state, exercise the office of governor, except as hereinafter expressly provided. Reprieves and pardons. Sec. 13. The governor shall have the power to grant reprieves and pardons after conviction, for all offenses except treason and cases of impeachment, ujjon such conditions, and Avith such restrictions and limitations, as he may think proper, subject to such regulations as may be provided by law relative to the manner of applying for pardons. Upon conviction for treason, he shall have the power to suspend the execution of the sentence until the case shall be re- ported to the legislature at its next meeting, when the legislature shall either pardon, direct the execution of the sentence, or grant a further reprieve. He shall communicate to the legislature, at the beginning of every session, every case of reprieve or pardon granted, stating the name of the convict, the crime of which he was convicted, the sentence and its date, and the date of the pardon or reprieve. Seal of state. Sec. 14. There shall be a seal of this state, which shall be kept by the gov- ernor, and used by him officially, and shall be called " The Great Seal of the State of California," xxxviii. Grants and commissions. Sec. 15. All grants and commissions shall be in the name and by the authority of the people of the State of California, sealed with the great seal of the state, signed by the governor, and countersigned by the secretary of state. Lieutenant-governor. Sec. 16. A lieutenant-governor shall be elected at the same time and places, and in the same manner as the governor; and his term of office, and his qualifi- cations of eligibility, shall also be the same. He shall be president of the senate, but shall only have a casting vote therein. If, during a vacancy of the office of governor, the lieutenant-governor shall be impeached, displaced, resign, die, or become incapable of performing the duties of his office, or be absent from the state, the president of the senate shall act as governor until the vacancy be filled or the disability shall cease. WJien duties of governor to devolve on lieutenant-governor. Sec. 17. In case of the impeachment of the governor, or his removal from office, death, inability to discharge the powers and duties of the said office, resignation, or absence from the state, the powers and duties of the office shall devolve upon the lieutenant-governor for the residue of the term, or until the disability shall cease.'"* But when the governor shall, with the consent of the legislature, be out of the state in time of war, at the head of any military force thereof, he shall continue commander-in-chief of the military force of the state. (a) When the constitution clearly enumerates the governor) all other causes of vacuncy are excluded, events that shall constitute a vacancy in a particular Melouy vs. Whitman, 10 Cal. iiS. office (as it is held to do here in regard to the office of 51 xxxviii-xl CONSTITUTION OF THE STATE OF CALIFORNIA. Other state officers. Sec. 18. A secretaiy of state, a controller, a treasurer, an attorney-general, and a surveyor-general, shall be elected at the same time and places, and in the same manner as the governor and lieutenant-governor, and whose term of office shall be the same as the governor/*^ [Amendment, proposed 1861; ratljied 3t? September, 1862..^^' Duties of secretary of state. Sec. 19. The secretary of state shall teep a fair record of the official acts of the legislative and executive departments of the government, and shall, when required, lay the same, and all matters relative thereto, before either branch of the legislature, and shall perform such other duties as may be assigned him by law; and in order that no inconvenience may result to the public sei'vice, from the taking effect of the amendments proposed to said Article Five by the legisla- ture of eighteen hundred and sixty-one, no officer shall be superseded or sus- pended thereby, until the election and qualification of the several officers provided for in said amendments. [Amendment, proposed 1861; ratified 3fZ September, 1862.'<=^ xxxix. Election of state officers. Sec 20. The controller, treasurer, attorney-general, and surveyor-general, shall be chosen by joint vote of the two houses of the legislature, at their first session under this constitution, and thereafter shall be elected at the same time and places, and in the same manner as the governor and lieutenant-governor. Compensation. Sec 21. The governor, lieutenant-governor, secretary of state, controller, ti-easurer, attorney-general, and surveyor-general, shall each, at stated times during their continuance in office, receive for their services a compensation, which shall not be increased or diminished during the terai for which they shall have been elected; but neither of these officers shall receive for his own use any fees for the performance of his official duties. ^''^ ARTICLE VI. JUDICIAL DEPARTMENT. xl. Judicial poioer. Section 1. The judicial power of this state shall be vested in a supreme court, in district courts, in county courts, in probate courts, and in justices of the peace, and in such recorders and other inferior courts as the legislature may (a) The coneUtutloDal policy Is that all elective of- (r) Original Bectlon: flcere connected with the extcutive ciepurtiuentB tliall Skc. 1!». The secretary of Blate f-hall be appointed by be elected bif-n»lally at the same time and place and the governor, by and wiih the advice and consent of in the same manner. An apiiJufnient if a controllir the senate. He shall keej) a fair record of the otVu ial by the governor before this election cimni't defeat this acts of the letjisliitive and execulive departments of policy, nor deprive the pe pie of their right to fill the tlie govemmiiit, and shall, when required, lay the oflBce of controller at such election, trooks vs. Melony, saiiie, and all matters ulative thereto, before either 1.) Cal. .08. branch of tlie IcgiKlature; and shall perform euch other ('() Original Bection: duties as shall be nssi^;ned him by law. btc. IH. A secretary of state, a controller, a treasurer, {(I) Tlie constitution is silent with res-pect to the du- an attoniey-general, and surveyor-general, shall be ties to be leriurmed bj the attorney general, secretary chosen in the manner provided in this constitutiou; of state, controlli rand treasurer, and in assigning their and the term of otHce, and eligibility of each, ^hall be duties the legislature has a -wide discretion; but a lim- 'he same aB are prescribed by the governor and lieu- itation on this discretion is Implied from the nature of tenant-governor. these o&^ces. Love vs. Baehr, 47 Cal. 364. 52 CONSTITUTION OF THE STATE OF CALIFOKNIA. xl establish in any incorporated cit}' or town.'"^' \AmcH(lme^-U, proposed 1861 ; ratified 'M September, 18(12}"'' Supreme court. Sec. 2. The supreme court shall consist of a chief justice and four associate justices. The presence of three justices shall be necessary for the transaction of business, excepting- such business as may be done at chambers, and the con- currence of three justices shall be necessary to pronounce a judgment. [Amend- ment, proposed 18G1; ratified Zd September, 1862.^"^ Election of supreme judges. Sec. 3. The justices of the supreme court shall be elected by the qualified electors of the state at special elections to be j)rovided by law, at which elections no oJBficer other than judicial shall be elected, except a superintendent of public instruction. The first election for justices of the supreme court shall be held in the year eighteen hundred and sixty-three. The justices shall hold their offices for the term of ten years from the first day of January next after their election, except those elected at the first election, who, at their first meet- ing, shall so classify themselves by lot, that one justice shall go out of office every two years. The justice having the shortest term to serve shall be the chief justice. [Amendment^ proposed 1861; ratified Zd September , 1862."^' Jurisdiction of supreme court. Sec, 4. The supreme court shall have appellate jurisdiction in all cases in equit}^; also, in all cases at law which involve the title or possession of real estate, or the legality of any tax, impost, assessment, toll, or mumcii^al fine, or in which the demand, exclusive of interest, or the value of the property in controversy, amounts to three hundred dollars; also, in all cases arising in the j)robate courts; and also, in all criminal cases amounting to felony, on ques- tions of law alone. The court shall also have power to issue writs of manda- mus, certiorari, prohibition, and habeas corpus, and also, all writs necessary or jiroper to the complete exercise of its ap2:»ellate jurisdiction. Each of the jus- tices shall have jiower to issue writs of habeas corpus to any part of the state, upon petition on behalf of any person held in actual custody, and may make such writs returnable before himself, or the supreme court, or before any dis- trict court, or any county court, in the state, or befoi'e any judge of said coui'ts. [Ameiidmetd, proposed 1861; ratified Zd September, 1862.'"' (a) Each branch of iiie judicial department has its The eonstitnti"u not having defined the jurisdiction functi Bs jiBsigni'd by the constitution, and is beyond of the municiiJal courts authorized to be established, -"the control of either of the other departments of the it is left to be regulated bj- the legislature under its government. Parsons vs. luolunine County Water Com- general powers. Id. pany, 5 Cal. 43. The municiiial criminal cou't of San Francisco is a The legislature cannot confer on one court the funo- constitutional court. People vs. Myland, 41 Cal. 12'J. tions and powers which the constitution has conferred (b) Original section: on another; consequently a law vesting justices of the Section 1. The judicial power of this state shall be peace with juris iiction where the aiuouut in contro- vested in a supreme court, in district courts, in county versy amounts to that over which district cuurts have courts, and in justices of the p. ace. The lejiislature j irisdiction is unconstitutional. Zander vs. Coe, 5 may also establish such municipal and other inferior Cal. 2:i0. courts as miy be deemed necessary. Under the piwer " fo establi-h such municipal and (t) Original section: other inferior coui-ts as may be necessary," the courts Sec 2. The supreme court shall consist of a chief thus creat-d could only be of inferior, limited and spe- justice and two associate justices, any two of whom cial jurisdiction. Ttie old suiierior c u t of San Iran- shall constitute a quorum. <;isco could, therefore, not be vested with jurisdiction (d) Origin:! section; so as to let its powers run beyond its territory. Meyer Skc. 'A. The justices of the supreme court shall be vs. Halkman, ti Cal. .582. elected at the general election, by the qualitiod electors The purpose and effect of the amendment of .Article of the state, and shall hold their ofhte for the term of VI is not to susi^eud the administration of any portion six years from the first day of January next after their ■of the laws of the state, but to ijrovide a judiciary sys- election: jirovided that ihc :egi!^lature shall, at its first tem which will go inio oiieration when the necessary meeting, elect a chief justice and two associate justiies officers shall be elected pursuant to laws to be hereaf- of the suireme court, by joint voti; of both houses, and ter enacted, and to contiuu" the forua«r judiciary sys- so classify them that one shall go out of office eveiy tem in force until the new one shall be in a condition two j-ears. After ihe first el ction. the senior justice to exercise its functions. The old provisions cease to in commission shall be the chief justice. have effect from time to time as the substituted prov s- (c) Original section: ions commence to operate. Ex parte Carlos Oliverez, Sec. 4. The supreme court shall hjvve appellate juris- 21 Cal. 415. diction in all cases when the matter in dispute exceeds The term "municipal cojirts " has a legal meaning two himdred dollars, when the legality of any tax. toll, and includes mayors' and recorders' courts. Urid'^is or impost, or municipal fine is in qtiestion, and in all vs. Morrill, 22 Cal. 473. criminal cases amounting to felony or questions of law 53 xli CONSTITUTION OF THE STATE OF CALIFORNIA. xli. Judicial dislrivts — Di^lricf jiidr/rs. Sec. 5. The state shall he divided hj the legislature of eighteen hundred and sixty-three, into fourteen judicial districts, subject to such alteration from time to time, b}' a two thirds vote of all the members elected to both houses, as the j)ublie good may require; in each of which there shall be a district court, and for each of which a district judge shall be elected by the qualified electors of the district, at the special judicial elections to be held as provided for the election of justices of the supreme court by section three of this article. The district judges shall hold their offices for the term of six years from the first day of January next after their election. The legislature shall have no power to grant leave of absence to a judicial officer, and an}- such officer who shall absent himself from the state for upwards of thirty consecutive days shall be deemed to have forfeited his office. [Amendment, proposed 18G1; ratified SJ Sep- temher, 18G2.^'') alone. And the said conrt. and each of the justices thereof, as well as all district and county judges, iehall have power to issue writs of habeas coriius -at i\i<^ m- i-tauce of any person held in iictual custody. They i-hall also have j)ower to issue all other writs and i^ro- CC-P6 necessary to the exercise of their appellate juris- diction, and shall be conservators of tlie peace tii rough- out the state. The supreme court being created hy the constitution, and its powers bring therein defined, the jurisdiction therein conferred must be taken as exclusive; hence, under the original section it was held that it had no original jurisdiction, except in cases of habeas corpus, and could not issue a quo warranto. Attorney-General ex i^arte, 1 Cal. 85. >or could it issue a certiorari. Warner vs. Hall, 1 Cal. 90. But it could exercise its appellate powers by means of niandiimus, and it seems, of certiorari, &c. Feople vs. Turner, 1 Cal. 1«; White vs. Lighthall, 1 Cal. ■Ail; see Cowell vs. Kuctelew, U Cal. 6-10. No appeal lay from the judgment of a district court on an appeal from an order of the court of hessions upon an application for a ferry license. 2 Cal. VA'A. Held that the supreme court had power to issue a vrit of error to a county couit, where tbe supreme couit had jurisdiction of the subje< t-m; tter. and thi re Was no express provision by law by which the case cuuld be brought up. Adams & Co. vs. Town, 3 Cal. '] his court has no appellate jurisdiciion in cases of misdemeanor or crimes of a less degree th n felony, and no jurisdiction can be conferred by the legislature. I'eop e vs .\pplegate, ■') Cal. 295; People vs. bhear, 7 Ch:. 1:.9; People \s Vick, 7 Cal. ir,5. The KuiJreuie court has no power to naturalize. Ex parte Frank Knowles, 5 Cal. 3i0. A writ of error will lie only in cases where no appeal is given by statute. Where an appeal is given, that remedy is exclusive. Haight vs. Gay. 8 Cal. 'iO". Tlie supr.-me couit jjossesses i piiellate jurisdiction in all cases, except as provided in the constitution; it conse(|i:( ntiy has iippellate jurisdiction in divor».e «^apes. Connnt vs. (.'onant, 10 Cal. 2-19. Jurisdiction on appeal will not be entertained where the record (in a suit for damages) fails to show that the matter in dispute exceeds S2u0. Doyle vs. Seawall, 12 Ciil. 280. 'I he words "matter in dispute" menn tbe subject of litigation. Cost« form no ) art of it. Dumphy vs. Guindon, 1:< Cal. 28; Votau vs. Reese. 20 Cal. K!). \Vhee suit was brought for f2(10 and defendant phaded a set-off of $125: Held, that the matter in dis- pute did not exceed $200. Simmons vs. Brainard, 14 Cal. 278. Where there was a judgment for plaintilf agiiiiist de- fendant for $000, and di^fendant. having a judgment against plaintiff" for $110 in another court, moved to set it off. which was denied: Held on axji>eal of the motion that the matter in dispute did not exceed $200. Craiidell vs. Elen, 15 Cal. 40(>. Some offenses may be punished either as felonies or inisdememors, and in such cases the itunishiiieiit in- flicted must determine the grade of the offense. If the l)unishment is a fine for a misdemeanor, though it ex- ceeds .$200, the supreme court has no ajjpellate juris- diction. People vs. Cornell, 10 f;al. 1S7. The half pilotage allowed by the twenty-third section of the act of March 29, 1856, relating to pilots, is not a " toll" within the meaning of the constitution. Har- rison vs. Green, 18 Cal. 94. Where the matter in dispute does not exceed the con- stitutional sum, the supreme court has no appellate jurisdiction, though the demand is secured by a me- chanic's lien or a mortgage, of which a foreclosure is sought in the same case, roland vs. Cairigan, 20 Cal. 174. The supreme court could not, under the original article, issue the writ of certiorari except in aid of its appellate jurisdiction; consequently the provision of section 456 of the practice act held not to apply to it. Miliken vs. Huber, 21 Cal. 169. Where in an acticm of forcible entry and detainer, plaintiif had judgment in a justice's court for $■. dam- ages and $20 line and costs, from which defendant appealed to the county couit, where the action was dis- missed and afti rwards a new trial granted: Held that it was doubtful whether the supreme conrt had juris- diction of an appeal from the order. Quinn vs. Kenyon, 22 Cal. 82. Under the constitution as amended, the supreme court has original jurisdiction to issue writs of man- damus, certiorari, prohibition and habeas corpus. Tyler vs. Houghton, 25 Cal. 20. A fine imposed by the county court for wrongfully demanding and collecting toll for the privilege of pass- ing over a road, is not a "municipal fine" within tbe meaning of the constitxition. People vs. Johnson, 30 Cal. 98. The words "cases at law" refer to civil as distin- guished from criminal cases. People vs. Johnson, 30 Cal. 9s. The supreme court has constitutional jurisdiction of an appeal from the county court in a contested election case. Knowles vs. Yeates, 31 Cal. 82; Day vs. Jones, 31 Cal. 201. [a] Original section: Sec. 5. Tbe state shall be divided by the first legis- lature into a convenient number of districts, subject to such alteration from time to time as tbe i)ublic good may require, for each of -which a district jtidge shall be appointed by the joint vote of the legislature at its first meeting, who shall hold his office for two years from the first rliiy of Jannarj- next after his election ; after which said judges shall be elected by the qualified electors of their re>pective districts, at the geieral election, and shall hold their office for the term of six years. An act of the legislature, by which a district judge of one district is empowered to hold a district court in another district, is not unconstitutional. People vs. McCauley, 1 Cal. 379. An election for district judge at the general election of 1858, when the thi n incumbent's otti' e was not to expire until 1801: Held unauthorized. Brodie vs. Wel- ler, 11 Cal. 77. When a district judge is elected by the people on the occasion of a vacancy, he is elected for a full term, and this, though the proclamation of the governor is for the unex|iired term. '1 he legislature can direct the time and prescribe the manner of electing di-trict judges, but cannot change tbe tenure of tbe office. Peoijle vs. liurbank. 12 Cal. 378. This iirovision does not restrict the number of ju- dicial districts to fourteen; it means that the legisla- ture may alter their numbir as well as their extent. People vs. Sassovich, 29 Cal. 480. 54 CONSTITUTION OF THE STATE OF CALIFORNIA. . xli Jurisdiction of diHirid courts. Sec. G. The district courts shall have original jurisdiction in all cases in equity; also, in all cases at law which involve the title or possession of real i:)roperty, or the legality of any tax, impost, assessment, toll, or municipal fine, and in all other cases in which the demand, exclusive of interest, or the value of the property in controversy, amounts to three Iiundred dollars; and also in all criminal cases not otherwise provided for. The district courts and their judges shall have power to issue writs of habeas corpus on petition by or on behalf of any person held in actual custody in their respective districts. [Amendment, proposed 18G1; ratified M September, 1802.^"' County courts and county judges — Probate judge in San Francisco. Sec. 7. There shall be in each of the organized counties of the state a county court, for each of which a county judge shall be elected by the qualified electors of the county, at the special judicial elections to be held, as provided for the election of justices of the supreme court by section three of this article. The county judges shall hold their offices for the term of four years from the first day of January next after theii* election. Said courts shall also have power to issue naturalization 2^apers."'^ In the city and county of San Francisco the legislature may sej^arate the office of probate judge from that of county judge, and may provide for the election of a probate judge, Avho shall hold his office for the term of four years. [Amendment, proposed 1861; ratified %d September , 1SG2."^> Jurisdiction of county courts. Sec. 8. The county courts shall have original jurisdiction of actions of forcible entry and detainer, of jn-oceedings in insolvency, of actions to prevent or abate a nuisance, and of all such special cases and proceedings as are not otherwise jDrovided for; and also, such criminal jurisdiction as the legislatiu'e may j^re- scribe; they shall also have appellate jurisdiction in all cases arising in coui-ts lield by justices of the peace and recorders, and in such inferior coui-ts as may be established, in jiursuance of section one of this article, in their resjiective counties. The county judges shall also hold in theii' several counties probate courts, and perform such duties as probate judges as may be prescribed by law. (a) Original section: recover damages for trespass upon lands, regardless of Sec. 6. The district courts shall have original juris- the amount of damages claimed. Holman vs. 'Jaylor, dictiou, in law and equitj', in all civil cases where the 31 Cal. 338. amount in dispute exceeds two hundred dollars, ex- Since the amendment of this section district courts elusive of interest. In all criminal cases not otherwise have no jurisdiction to try issues framed in probate provided for, and in all issues of fact joined in the pro- courts; and an act attempting to confer such jurisdic- bate courts, their jurisdiction shall be unlimited. tion is void. Matter of Will of Bo^ven, .34 Cal. t;H2. The jurisdiction of district courts is confirmed and It is the intention of this clause to give the district defined by the constitution, and no statute can deprive courts exclusive jurisdiction in those casts only in them of their powers. Consequently tliey have juris- which the rirjht to the possession is involved. Pollock dictiou of mining claims if the amount in coniro- vs. Cummings, b8 Cal. 083. versy is sufficient, though the legislature says tlint The constitutional jurisdiction of the district courts justices of the peace shall have jm-isdictiou of min- in " equity cases" does not prevent the legislature from ing claims. Hicks vs. Bell, 3 Cal. 219; freeman vs. prescriljiug the procedure by wliich such jurisdiciion Powers, 7 Cal. 104. is to be exercised, unless the regulations substantially When the principal sum sued for is less than S200, impair the constitutional power of the court or pi ac ti- the district court has not jurisdiction. Arnold vs. Van cally defeat its txercifC. Ex parte Barker, 4'.l Cal. 4io. Brunt. 4 Cal. 89. (b) In regard to tliis section, it is to be noted that the nistrii t courts have no appellate jurisdiction. Eeed clause relating to naturalization papers was not a part %'S. McCormick, 4Cal. 342. of the section as proposed by the legislature of ISGl District courts may render judgment for less than (see 1861, 6r.4). It will further be noted that the clause $200. Jackson vs. Whartenby, 5 Cal. 94. relating to the probate judgeship in the cty and county A law vesting justices of the pe ice with jurisdiction, of San Francisco, formed a part of the eightli section where the amount in dispute exceeds the sum specified and not of the seventh in the amendments propipsed in in the constitution, is void. Zander vs. Coe, 5 Cal. 230. 18fU. The legislatin-e of 1802 (see 1802, 584) changed The district judge while sitting in an equity case is and declared adopted the amendments as aljove given possessed of all the powers of a court of chancery, in the text. It will, however, be further noted that the Sanford vs. Head, 5 Cal. 297. amendments in regard to the judicial department are The district courts have " original jurisfliction in all to the entire Article VI, and not to the separate sections, cases in equity," and a statute depriving them of that (r) The seventh section of the original .\i-tic e was: jurisdiction or transferring it to any otlier court is un- Sec. 7. The legislature thall provide forthe election, constitutional and void. Willis vs. Farley, 24 (^al. 4'.i0. by the people, of a clerk of the supreme court, and The district courts have original jurisdiction to issue county clerks, district attorniys. sheriffs, coroners, and •writs of mandamus, certiorari, prohibition and habeas other necessary officers; and shall fix by law their du- corpus, notwithstanding the supreme court has like ties and compensation. County clerks shall be, ex jurisdiction. Perry vs. Ames, 20 Cal. 372. officio, clerks of the district courts in and lor their Xhe district courts have jurisdiction of all actions to respective counties. 55 xli-xlii COXSTITUTION OF THE STATE OF CALIFOEXIA. The coiiuty coui-ts and their judges shall also have power to issue "writs of habeas corpus, on petition by or on behalf of any person in actual custody iu theii- respective counties. [Ameiuhnent, proposed 1861; ratified Sd September, 1862/^^ Jasfices of the peace — Proviso. Sec. 9. The legislature shall determine the number of justices of the peace to be elected in each city and township of the state, and fix by law their powers, duties, and resiDonsibilities; provided, such powers shall not in any case trench upon the jurisdiction of the several courts of record. The supreme coiu-t, the district courts, county courts, the probate courts, and such other courts as the legislature shall j^rescribe, shall be courts of record. {x\inendment, proposed 1861; ratified M September, 1862."^ xUi. Jurisdiction of recorders' and other inferior municipal courts. Sec. 10. The legislature shall fix by law the jurisdiction of any recorder's, or (a) Eiglitli section of original article: Skc. 8. There shall be elected iu each of the organ- ized couDties of this state, one county judge, whso shall hold his office for four years. He shall hold the county coiu't and perform the duties of surrogate or probate judge. The county judge, with two justices of the x>eace, to be designated according to law, shall hold courts of sessions, with such criminal jurisdiction as the legislature shall prescribe, and he shall perform such other duties as shall be required by law. The term •' special cases" does not include any class of cases for which courts of general jurisdiction have always supplied a remedy; it must be confined to such new cases as are the creation of statutes. Parsons vs. Tuohimne County Water Company, 5 Cal. 43. Held, under the original section, that justices of the peace were not to be regarded as supernumeraries to the court of sessions, but necessary officers, who had to begin with and continue through a trial. People vs. Ah Chung, 5 Cal. 103. Held, under the ninth section of the original article, that the county court had no jurisdiction to enforce a mechanic's lien where the amount iu controversy ex- c. eded S200. Brock vs. Bruce, .5 Cal. 279. The constitution cannot be construed t) confer ex- clusive original jurisdiction in all special ra>es upon < ounty courts. Justices' courts have jurisdiction in cases of forcible entry. O'Callaghau vs. Booth, 6 Cal. 03: Small vs. Gwinn, 6 Cal. 447. Insolvency cases are "special cases;" and it was an exercise of legitimate power in the legislature to confer jurisdiction iu such cas-s upon both county and district courts. Harper vs. Freelon, Cal. 7Ci. The grant of authority to county judges to award in- junctions iu cases brought iu district courts is not trenching upon the limits of jurisdiction of any of the courts; it is a mere jjower to issue proce-ss auxiliary to the proper jurisdiction of the district courts. Thomp- son vs. Williams, 6 C.l. 88. The act of March 27,1850. conferring upon the county court the x)ower of incorporating towns, was uncon- stitutional. Legislative fimctions cannot be exercised by the judiciary. People vs. Nevada, 6 Cal. 143. Under the act to reorganize San Mateo County (1857, 22'2) an election was held, and Fox was elected county judge. There was no ijroclamation of the governor for the election. At tlie general ilectiou iu lx."i8 an elec- tion was lield pursuant to i>roclamation, and Templeton was elected to the same office: Held, that Fox was en- titled to th" office for a term of four years, commencing from th<' time of his as.'^umption of the office. Fox vs. Te)npleton, 12 Cal. 394. The act giving jurisdiction over the subject of con- tested elei tioub to the county judge is constitutional; it is one of the " special cases" provided for. Saunders Vis. Hayues, 13 Cal. 14.'5. The county judge may grant an injunction in cases in the district courts, but he cannot appoint a receiver; at lea^t not as a tiling distinct from the injunction, liuthrauffvs. Kresz, 13 Cal. 039. The legi--lature may fix the commenceoient of the term and also the time of election of a county judge, but an act limiting the term to anything less than four years is void pro tanto. Wchtbrook vs. liosborough, 14 Cal. l.HO. Wlicre an incumbent resigns before the expiration of his term, there is a vacancy to be filled by the governor; and his appointees hold until the next general election, and until his succtF-or fjualifies. Id. An election to fill such a vacancy is a special elec- tion, and the governor's proclamation is essential to its validity. Id. The statute giving to county courts jurisdiction in proceedings by mandamus is not unconstitutional Jacks vs. Day, 15 Cal. 91. The proceedings before the coriJorate authorities of the town, or the county coiu-t, provided for by the act of January 24, 18(J0, regulating the mode of settling claims to lots iu town sites situated on public lands in Bumboldt County, is a " special case" within the mean- ing of the constitution. Ricks vs. Reed, 19 Cal. 551, A i^roceeding to enforce a mechanic's lien under the mechanic's lien law of 1861 is a "special case" of which the legislature might proiierly give jurisdiction, to the county court under the constitution. McNiel vs. Holland, 23 Cal. 144. The statutory iiroceeding for contesting an electioa, as provided for in the act of 1850, was a " special case." Dorsey vs. Barry, 24 Cal. 449. The grant to the county court of jurisdiction to pre- vent or abate nuisances, docs not deprive the district courts of concurrent juri-diction under their equity powers. Courtwrigbt vs. Bear River & Auburn W. & M. Co., 30 Cal. .573. The constitxUion does not confer on the jsrobate court jurisdiction of all matter.s relating to the estates of deceased persons, but of such matters only as the statute directs it to exercise jurisdiction over. Bush vs. Lind- Bey. 44 Cal. 121. The constitution has left to the legislature to deter- mine v/hether juri-diction over any special case shall be vested in the county court or some other court. Matter of Marks, 45 Cal. 199. Writs of mandate are not " special cases" within the meaning of the constitution. People vs. Kern Count.. , 45 Cal. 679. An act attemi)ting to confer power on the county coiu-t to issue writs of mandate is imconstitiitiouaL Peox^le vs. Kern County, 45 Cal. 679. Proceedings for tlie condemnation of water to supply cities wiih x>ure water, and the right of way to conduct it, are "special cases." Spencer Creek Water Co. vs. Vallcjo, 48 (;al. 70. The legislature cannot confer jurisdiction of " siwcial cases" upon the county judge, but only upon one of the courts mentioned in the constitution. Spencer Creek Water Company vs. V'allcjo. 48 Cal. 70. (h) Ninth section of original Article: Sec. 9. The county courts shall have such jurisdic- tion, in cases arising in justicts' courts, and in special cases, as the legislature may prescribe, but shall have no original civil jurisdictiun, except in such siJecial cases. The jurisdiction of justices of the peace is limited to cases in which the value of the thing in controversy does not exceed the sum specified, except in proceed- ings under the statute concerning f orcibl.; entry. Wlu u the thing in dis;nite, though a mining claim, is worth more than tliat unii, the justice has no jurisdiction. Freeman vs. Powers, 7 Cal. 104. Under the ninth section of the original Article: Held, that the county court had the sole appellate jurisdic- tion in all cast s, civil and criminal, arising in justices' courts; and th .t the court of sessions had no appellate jurisdiction. People vs. Fowler, 9 Cal. 85. The act of April 27, 1863, " concerning the unlawful holding ovtr of lands, teneimnts and otlier jiosscs- Bions," and atlemi>ting to vest jurisdiction of holding- over casen in justices of the peace, was unconstitutional. Caulfleld vs. Stevens, 28 Cal. 118. 56 CONSTITUTION OF THE STATE OF CALIFORNIA, xlii-xliii other inferior municipal court, wliicli maybe established in pursuance of section one of this article, and shall fix by law the powers, duties and responsilnlities of the judges thereof. [Amendment, jjvoposed 18G1; ratiJiedZd September , 18G2."" Clerk of supreme court — Gounli/ officers. Sec. 11. The legislatiu-e shall jirovide for the election of a clerk of the supreme court, county clerks, district attorneys, sherifls and other necessaiy officers, and shall fix by law their duties and compensation. County clerks shall be ex officio clerks of the coui'ts of record in and for their respective counties. ^"^ The legislature may also provide for the appointment by the several district courts of one or more commissioners in the several counties of their respective districts, with authority to perform chamber business of the judges of the dis- trict courts and county courts, and also to take depositions and to perfomi such other business connected with the administration of justice as may be prescribed by law. [Amendment, proposed 1861; ratified 3d September, 1862,^"' Ter)iis of courts. Sec. 12. The times and places of holding the terms of the several courts of record shall be provided for by law. [Amendment, proposed 18G1; ratified 3d September, 1862.^'*' Fees and perquisites. Sec 13. No judicial officer, except justices of the joeace, recorders and com- missioners, shall receive to his own use any fees or perquisites of office. [Amend- me)d, p>roposed 18G1; ratified 3d September, 1862.'*^^ Publication of opinions of supreme court. Sec. 14. The legislature shall provide for the speedy publication of such opinions of the supreme court as it may deem expedient; and all opinions shall be free for publication by any person. [Amendment, proposed 18G1; ratified M Setpember, 1862.^" xliii. Compensation of judges. -• Sec. 15. The justices of the supreme court, district judges, and county judges, shall severally, at stated times during their continuance in office, receive for their services a compensation, whicli shall not be increased or diminished during the term for which they shall have been elected: provided, that county judges shall be j)aid out of the county treasuiy of their respective counties. [Amend- ment, proposed 18G1; ratified ■id September, 18G2.'^' (n) Tenth section of original Article: courts Khill be held at the county seats. FpUam V6. Sec. 111. The times and jlaces of hokliiigthe terms Sutter County. 8 Cal. 378. of the supreme court, and the general and special terms The constitution does not iirohibit the legislature of the distiict courts within ttie several districts, shall from authorizing a judgment to be entered in vacation, be provided for by law. Tcople vs. Jones. 20 Cal. 50. [I)) \ county clerk may issue process and attest pro- (i) Thivteeuth section of original Article: ceedings of the courts of which he is ex officio clerk Sec. i:i. Tribunals for conciliation may bo estab- over his signature as county chrk, and leave to the title lisheJ, with such powers and duties as may be pre- of the proceedings or contents of the instruments the scribed by law; but such tribunals shall have no power identification of the courts to which they belong, to render judgment to be obligatory on the partif b, Toucbard vs. Crow, 20 Cal. l.iO. except they vohintarily submit iheir matters in difl'er- (c) Eleventh section of original Article: euce, «nd agree to abide the judgment, or assent thereto Sec. 11. No judicial officer, except a justice of the in the presence of such tribunal, in such cas-s as shall peace, shall receive, to his own use, any fees or per- be prescribed by law. quisites of office. Since the occupation of California by tlie Americans, Under the eleventh section of the original Article: the Mexican proceeding of conciliation has been decm- Held, that when the constitution exempted justices of ed a useless formality. Von Schmidt vs. Huntington, the peace from the operation of the restraint in regard 1 Cal. 55. to fees and perquisites, it meant to ex> nipt those also, (/) Fourteenth section of original .\rticle: by whatever name called, who were intrusted with the Sec. 14. The legislature shall determine the number duties assigned to justices, and th;it consequently the of justices of the peace, to be elected in each county, recorder of the city of Sacramento was entitled to city, town, and incorporated village of the state, and collect fees. Curtis vs. Sacramento, 13 Cal. 2'JO. fix by law their powers, duties and responsibililies. It ('/) Twelfth section of original Article: shall also determine in what cases appeals may be Sec. 12. The legislature shall provide for the speedy made from justices' courts to the county court, publication of all statute laws, and of such judicial {o) Original section: decisions as it may deem expedient; and all laws and S>c. 1.5. Tht- justices of the supreme court and judges I judicial decisions shall be free for publication by any of the district courts shall severally, at stated times \persun. during their continuance in oflice. receive for their ser- The constitution docs not require that the district vices a compensation to be paid out of the treasury, 57 xliii-xliv CONSTITUTION OF THE STATE OF CALIFOKNIA. Disabilities of judges. Sec. 16. The justices of the supreme court, and the district judges, and the county judges, shall be ineligible to any other office than a judicial office, during the term fo'i- which they shall have been elected. [Amendment, proposed 18G1; ratified M September, 1862.^^) Charge to juries. Sec 17. Judges shall not charge juries with respect to matters of fact, but may state the testimony and declare the law. [Amendment, proposed 18G1; ratified 3d September, 1802.^"' Style of jirocess. Sec' 18. The style of all process shall be, " The People of the State of Cali- fornia," and all prosecutions shall be conducted in their name and by their- authoi-ity. [Amendment, proposed 18G1; ratified M September, 1862. ^'^ Effect of amendments. ' Sec 19. In order that no inconvenience may result to the public service from the taking effect of the amendments proposed to said Article Six by the legis- lature of eighteen hundred and sixty-one, no officer shall be superseded thereby, nor shall the organization of the several courts be changed thereby, until the election and qualification of the several officers provided for in said amend- ments. [Amendmeiit, proposed 1861; ratified dd September, 1862.^"^^ AKTICLE VII. MILITIA. xliv. Organization and discipline. Section 1. The legislature shall provide by law for organizing and disciplin- ing the militia, in such manner as they shall deem expedient, not incompatible with the constitution and laws of the United States. Officers. Sec 2. Officers of the militia shall be elected or appointed in such a manner as the legislature shall from time to time direct, and shall be commissioned by the governor. Governor to call out. Sec 3. The governor shall have power to call forth the militia, to execute the laws of the State, to sujjpress insurrections, and repel invasions. •which Hhall D'lt bt- IncrcaBed or diminiebcd duriug the of fact or as to the weight of evidence. Battersby vs. tenu for whirli tiny hhall have beeu elected. The Abbott, 9 Cal. 5G.5. county judgfh hhiill also Kovt rally, at Ktuted times, re- This provision is violated whenever a judge so in- celvf for tlicir hre the law declares certain fa<-ts conclu- («/) The jurisdiction of the old courts continued un- bIvc evlden' e of fraud, a verdict against such conclvi- imp.iired imtil the organization of the new courts by sion itill 1>e set aside. liilliugs vs. I'illings. 'i Cal. 107. which they were to be superseded. Gilliss vs. Uaructt, It ia error for a court to charge a Jury as to a question 38 Cal. 303. 58 CONSTITUTION OF THE STATE OF CALIFORNIA, xlv-xlvi ARTICLE VIII. STATE DEBTS. xlv. Restrictions on logislatire power. The legislature shall not iu any manner create any debt or debts, liability or liabilities, which shall singly, or in the aggregate, with any preAious debts or liabilities, exceed the sum of three hundred thousand dollai>5, except in case of war, to repel invasion, or suppress insurrection, unless the same shall be author- ized by some laAV for some single object or work, to be distinctly specified therein, which law shall jirovide ways and means, exclusive of loans, for the payment of the interest of such debt or liability, as it falls due, and also pay and discharge the principal of such debt or liability within twenty years from the time of the contracting thereof, and shall be iiTepealable until the principal and interest thereon shall be j)aid and discharged; but no such law shall take eflect until, at a general election, it shall have been submitted to the people, and have received a majority of all the votes cast for and against it at such election; and all money raised by authority of such laAv, shall be applied only to the specified object therein stated, or to the payment of the debt thereby created; and such law shall be published in at least one newsj^aper in each judicial district, if one be published therein, throughout the State, for three months next preceding the election at which it is submitted to the people. '^^ ARTICLE IX. EDUCATION. xlvi. Superintendent of public instruction. Section 1. A superintendent of public instruction shall, at the special election for judicial officers to be held in the year eighteen lumdred and sixty- three, and every four years thereafter at such special elections, be elected by the qualified voters of the State, and shall enter upon the duties of his office on the first day of December next after his election. [Amendment, proposed 1861; ratified 3tZ September, 1862.'"' Duties of legislature — School fund. Sec. 2. The legislature shall encourage, by all suitable means, the promo- tion of intellectual, scientific, moral, and agricultural improvement. The jDro- ceeds of all land that may be gTanted by the United States to this State for the (a) The meaning of tliis section is too plain to permit liability against the state. Though under the contract the courts to resort to rules of construction to alter it. with Estill provided for the payment to him of §10,000 Hence, the act of April 8, 185.5, providing for the con- per month, there could be no debt on the part of tUe Btruction of a wagon road to the Sierra Nevada, and state until the services were rendered. California vs. authorizing the board of commissioners to contract for McCauley, 15 Cal. 429. the same at a price not exceeding 8300,000, while the Taxes are not "debts" within the meaning of this existing indebtedness of the state exceeded that sum article. Perry vs. Washburn. 20 Cal. 318. (said act containing no provision fur submission of the The evident intention was to impose limitations upon question to the peox^le), was void. People vs. Johnson, the general power of the legislature to create deb's, 6 Cal. 499. leaving it free, however, from such restrictions iu gnat The act of April 18, 1856, providing for the erection emeraencies caused by war, invasion or insurrection, of a state capitol at a cost not to exceed S300,000, held Franlilin vs. State Board of Examiners. 23 Cal. 173. void. Nougues vs. Douglass, 7 Cal. H5. A law which appropriates a sum of money for the This article is an express restriction upon the powers future, and directs certain payments to be made out of of the legislature, and there is no power in the judic- the same at designated periods from year to yearthere- iary to set it aside, whatever inconvenience may result after, and also imposes a special tax and sets apart the from a legitimate application of the i^rovision. Id. proceeds thereof as a fund to meet the sums to be paid All debts contracted in violation of this article are as they become payable, does not create a debt within void, and the legislature has no power to levy a tax or the meaning of the prohibitory clause of the constitu- ajipropriate money for the payment thereof. Id. tiou. People vs. Pacheco, 27 Cal. 175. This article only applies to the state as a corporation, {0) Original section: and does not prevent the state auth2i. eral laws passed for that purpose; sothatan actdivert- The schi)ol land act of Ai)ril 20, 18.58, is not a grant ing such fund to any other than school puriioses is uu- ot the interest money to the several townships, but constitutional. Crosby vs. Lyon, 37 Cal. 242. 60 CONSTITUTION OF THE STATE OF CALIFORNIA, xlvii-xlviii Coni'ention, Sec. 2. And if, at any time, two thirds of tlie senate and assembly shall think it necessary to revise or change this entire constitution, they shall recom- mend to the electors, at the next election for members of the legislature, to vote for or against a convention; and if it shall appear that a majority of the electors, voting at such election, have voted in favor of calling a convention, the legislature shall, at its next session, provide by law for calling a convention, to be holden within six months after the passage of such law; and such con- vention shall consist of a number of members not less than that of both branches of the legislature. The constitution that may have been agreed upon and adopted by such convention, shall be submitted to the people, at a special election, to be provided for by law, for their ratification or rejection; each voter shall express his opinion by depositing in the ballot-box a ticket, whereon shall be written or printed the words " For the new Constitution," or " Against the new Constitution." The returns of such election shall, in such manner as the convention shall direct, be certified to the executive of the state, who shall call to his assistance the controller, treasurer and secretary of state, and compare the votes so certified to him. If, b}' such examination, it be ascertained that a majority of the whole number of votes cast at such election, be in favor of such new constitution, the executive of this state shall, by his proclamation, declare such new constitution to be the constitution of the State of California. [Amendmeiif , proposed 1855; ratified Wi November, 1850.^"^ ARTICLE XI. PROMISCUOUS PROVISIONS. xlviii. Seat of government. Sectiox 1. The first session of the legislature shall be held at the Pueblo de San Jose; which place shall be the permanent seat of government, until removed by law: provided, however, that two thirds of all the members elected to each house of the legislature shall concur in the passage of such law.'"' Duelling. Sec. 2. Any citizen of this state who shall, afttr the adoption of this consti- tution, fight a duel with deadly weapons, or send or accept a challenge to fight a duel with deadly weapons, either -\Wthin this state or out of it; or who shall act as second, or knowingly aid or assist in any manner those thus offending, shall not be allowed to hold any office of profit, or to enjoy the light of suffrage nuder this constitution. Official oath. Sec. 3. Members of the legislature, and all officers, executive and judicial, except such inferior officers as may be by law exempted, shall, before they enter on the duties of their respective offices, take and subscribe the following oath or affirmation : "I do solemnly swear (or affirm, as the case may be) that I will support the constitution of the United States, and the constitution of the State of California, (a) Original section; within six uiouths after thp passage of snch \av>; and Sec. 2. And if, at any time, two thirds of the senate such convention shall consist of a number of mem- and assembly shall think it necessary to revise or bers not less than that of both branches of the legisla- change this entire constitution, they shall recommend ture. to the electors, at the next election for members of the {!>) After the first removal, a majority of the lefisla- legislature, to vote for or against the convention; and ture might at any time remove the capital; couse- if it shall appear that a majority of the electors wting quently the act of Tebriiary i, 1851, removing it to at such election have voted in favor of calling a con- Vallejo, was constitutional. Vermwle vs. Bigler, 5 veution, the legislature shall, at its next session, pro- Cal. 23. vide by law for calling a convention, to be holden 61 slviii-1 CONSTITUTION OF THE STATE OF CALIFOENIA. and that I will faithfully discharge the duties of the office of , according to the best of my ability." And no other oath, declaration, or test, shall be required as qualification for any office or public trust/ "^ County and (oini government. Sec. 4. The legislature shall establish a system of county and town govern- ments, which shall be as nearly uniform as practicable throughout the State.^"' xlix. Counhj sitpcrvimm. Sec. 5. The legislature shall have power to provide for the election of a board of supervisors in each county; and these supervisors shall jointly and individ- ually perform such duties as may be prescribed b}' law.'"^^ New offices and officers. Sec. 6. All officers whose election or appointment is not provided for by this constitution, and all officers whose offices ma}' hereafter be created by law, shall be elected by the people, or appointed as the legislature may direct,^''' Terms of office. Sec. 7, When the duration of any office is not provided for by this constitu- tion, it may be declared by law, and if not so declared, such office shall be held dui-ing the pleasure of the authority making the appointment; nor shall the duration of any office, not fixed by this constitution, ever exceed four ycars.*^^ Fiscal xjear. Sec. 8. The fiscal year shall commence on the first day of July. Support of covnty and inferior officers. Sec. 9. Each county, town, city, and incorporated village, shall make pro- vision for the support of its own officers, subject to such restrictions and regulations as the legislature may prescribe. 1. Credit of slate. Sec. 10. The credit of the state shall not, in any manner, be given or loaned to or in aid of any individual, association, or corporation; nor shall the state directly or indirectly become a stockholder in an}' association or corj)oration.^'^ Suits against state. Sec. 11. Suits may be brought against the state in such a manner, in such courts, as shall be directed by law. {n) An attornoy at law is not a person hokling an (c) The povernor cannot remove from office a notary " office of pnldic trust," and may be required to file au public duly appointed before his full term of office lias affidavit of allegiance aB prescribed by tbe act of April expired. Finlny vs. .Tewett. 6 Cal. 21)1. 25, 1863, as a condition to practicing before the courts. Tliis provision must be construed to deny tlie right of Cohen vs. Wright. 22 Cal. 2!)U. removal in those cases where the t( nurc is di liincl. Id. The terms "office" and "public trust" have rein- A law which provides that au officer may In riinoved tion only to those p'-rsons and duties that are of a pub- in a certain way or for a certain cause, docs not restrain lie nature and do not apply to the case of an attorney or limit the power of removal to the caiise or manner at law. Ex ijarte Yale. 24 Cal. 2-11. indicated. The only way in which this power of re- (fc) This provision is to be cojisidered directory, and moval can be limited is by first fixing the duration or the authority to deternune what measure of uniform- term of office, and then providing the mode, if deemed ity is practicable must be left to the legislature. Pec- necessary, by which the officer maybe removed during pie vs. Lake County, 3:i Cal. 487. the terin. People vs. Hill. 7 Cal. 97. ic, This section must be regarded as a limitation on This clause does not mean that an office created by the Third Article of the constituti(m. From the neces- the legislature shall cease to exist after four years: but Blty o{ the case. super\'isors exercise judicial, legisla- that tlic term, fixed by the constit\itiiig autliority and tive and executive powers in matters relating to the for wliich au iiuumbcut holds l)y election or iiiipoiut- police and fiscal regulations of cojiuties. People vs. incut, sluill not exiend beyond that limit. Pcoi>le vs. El Dorado County, 8 Cal. ns. Strattou. 2H Cul. :W2. i'l) The constitution does not prohibit the legisla- The ((imiuissiouiTS of the funded debt of the city of ture from conferring on a voluntary association of i)er- San Krainisco were not officers within the meaning of Bons, who are not citizens, such as the board of fire tliis section as th(ir term was not limited to four years, underwriters of San Francisco, the power of electing People vs. ;\Iiddlctoii. 28 Cal. OBH. a jierson to fill an fiffice created by the legislature. In (/) Tlie clause prohitiitiiig tlie states from giving or re P.ulger. i'> Cul. hKi. loaning Its credit to or in aid of a cori)oration does not When the constitution declares an office to be elect- prohibit it from appropriating its funds in time of war ive, it cannot be filled in any other mode: but when to aid a corporation in the construction of a railroad to the office has been filled by election, the legislature be us6d by the state for military purijoues. People vs. may extend the term of the incurubent, i^rovided the Pacheco, 27 Cal. 175. ■whole term does not exceed the constitutional limit. Christy vs. Supervisors of Sacramento County, 39 Cal 3. G2 CONSTITUTION OF THE STATE OF CALIFORNIA. 1 Alarriages. Sec. 12. No contract of marriage, if otherwise duly made, shall be invalidated for want of conformity to the requirements of any religious sect. Taxation. Sec. 13. Taxation shall he equal and unifonn throughout the state. All property in this state shall be taxed in proportion to its value, to be ascertained as dii-ected by law; but assessors and collectors of town, county, and state taxes, shall be elected by the qualified electors of the district, county, or town, in which the propeiiy taxed for state, county, or town purposes is situated.^" Separate property. Sec. 14. All property, both real and personal, of the wife, owned or claimed by her before marriage, and that acquired afterwards by gift, devise, or descent, shall be her separate proj)ei-ty; and laws shall be i)assed more clearly defining the rights of the wife, in relation as well to her separate property, as to that \ (a) This section applies only to direct taxation vipon property, and does not prohibit the legislature from enacting license laws. It may require the payment liy foreigners of a license fee for the x'rivilege of working the gold mines in the state. People vs. Naglee, 1 Cal. 232. The constitution provides that all property shall be taxed; but the quo modo is a matter of legislative control, and the statute must be steadily followed. De Witt vs. Hays, 2 Cal. 463. It is not \vithin the power of the legislature to exempt any species of property, however owned, from taxji- tion. That a steamboat is taxed in New York is no ground why it should not be taxed in California, when within its limits. Minturn vs. Hays, 2 Cal. 1590. The first clause of this section does not oi)erate as a limitation on the taxing power of the legislature, and apply ti) every species of taxation, but is to l)e taken as applying only to direct taxation on property as such. It does ncit require that all should be taxed alike. The power of the legislature to tax trades, professions and occupations, is a matter completely within its control and rests in its sound discretion. People vs. Coleman, 4 Cal. 4(1. The interest of the occupant of a mining claim is property, and it is. within the power of the legislature, under the constitution, to tax such property. State vs. Moore. V> Cal. 56. This section applies only to that charge or imposi- tion upon projjerty which it is necessary to levy to raise funds to defray the expenses of the government of the state or of some county or town. It has no ref- erence to special assessments for local improvements. For the expenses of such imijrovements it is comije- tent for the legislature to provide, either by general taxation upon the property of all the inhabitants of the count}- or town in which they are made, or upon proi)- erty adjacent thereto and specially benefited thereby. Burnett vs. Sacramento, 12 Cal. 70. The legislature can impose a general tax ui)on all the property of the state, or a local tax upon the prop- ertj' of particular political subdivisions, as counties, cities and towns. The cases in which its power shall be exercised and the extent to which the taxation in a partii iilar instance shall be carried, are matters exclu- sively within its own judgment, subject to tlie (qualifi- cations of equality and uniformity in the assessment. And, exiep: as especially restricted, its power of ap- propriation of the moneys raised is coextensive with its power of taxation. Blauding vs. Biirr, 13 Cal. 343. Assessors and tax collectors are constitutional officers, but it is not necessary that every portion of the rev- enue iiass through their hands. The legislature may authorize the tax-payer to pay his taxes directly into the treasury. People vs. Squires, 14 Cal. 12. The foreign miners' license, though in some sense a tax, yet, probably, it is not so in the sense involved in the U'Tcssnry duties of a tax collector. Id. A sheriff, being ex officio tax collector of foreign miners' licenses, may be deprived of the office of tax- collector by the legislature, before the expiration of his term. Id. The act of May 3. 18-52, providing for the appoint- ment of a ganger for the port of San Francisco, is con- Btitutional. It does not violate the provision that tax- ation shall be equal and uniform, because the per centage allowed the ganger is not a tax within the meaning of the constitution. Addison vs. Saulnier, 19 Cal. 82. The iirovision that taxation shall be equal and uni- form is not vi'dated by the revenue act of April 29, 1857, exempting church and school lands and lands of the United States from taxation. High vs. Shoemaker, 22 Cal. 363. The words " taxation" and "taxes," as used in this section, do not apply to assessments levied upon city lots to pay for street improvements. Emery vs. S. F. Gas Co., 28 Cal. 345. The provisions of this section are limitations and not grants of power, but as limitations are, according to their terms, mandatory upon the legislature. People vs. McCreery, 34 Cal. 432. The words " all property in this state " mean all property which is not public, and the legislature has no power to exeiniJt any private property from taxa- ation. People vs. McCreery, 34 Cal. 432. An act providing for the assessment of railroad or other property by assessors other than those in whose district the property is situated is unconstitutional. People vs. Placerville & S. V. K. K. Co., 34 Cal. 656. The legislature may by law devolve the office and duties of tax collector upcm the incumbent of any other elective office; but such law must precede the election of such officer, and his election must be by the quali- fied electors of tlie tax collector's district. People vs. Kelsey, 34 Cal. 470. A statute exempting private property from taxation and all parts thereof relating to such exemption are unconstituticmal and must be disregarded. People vs. Gerke, 35 Cal. 677. An act having the effect of exempting the property of a railroad from the payment of a school tax regu- larly levied is unconstitutional. Crosby vs. Lyon, 32 Cal. 242. An act taxing the property of a district for a local improvement, which exempts personal property from its operation is unconstitutional because not levied on all the property in the district. People vs. Whyler, 41 Cal. 351. The word " property" as here used, includes not only visible and tangibh- property but also choses in action such as solvent debts secured by mortgage. People vs. Eddv, 43 Cal. 331; Savings and Loan Society vs. Austin, 46 Cal. 415. Where an act authorizes a tax for road purposes upon property along a road in a portion of a county and pro- viding "tliat it should be assessed by the ikpn from the constitution of The ri;,'litK of ninrried women to their separate proij- TexaB. It i-reateB a caiiacitj- in the wife to hold Kei^a- erty in California do not depend alone upon the eoni- rate i)roperty, and her title depends upon the mode of mou law or doi-trlnes of courts of equity, but mainly acquisition and vests before the inventorj' can be filed, upcm the constitution and statutes. Macluy vs. Love, Selover vs. American Russian Commercial Company, 2.5 Cal. 367. 7 Cal. '2GC,. This clause does not refer to the mode and form in From the position that the capacity of the wife as to which a wife shall convey her separate property, and her separate i)roperty Is equal to that of the husband therefore a statute requiring a deed conveying such as to his separate property, urave doubts exist as to the separate property, to be signed by the husband as well validity of some of the provisions of the statute relat- as the wife, is not unconstitutional. Dow vs. Gould & int» to husband and wife. Id. Ourry S. M. Co., ai Cal. (!;)(). The term " separate ])roperty" is used in its common (/>) The constitution Is inoiierative in itself, and law sense, and means an estate, both In its use and in looks to lef,'islation to determine how far and in what it.s title, for the exilusive benefit of the wife. Neither manner the homestead should be protected from forced the husband nor his creditor can claim the proceeds or sale. Gary vs. Tice, C Cal. 625. fruits of tlie separate estate of the wife. A law giving them such fruits is uncoustitutioual. George vs. Ran- Bom, 15 Cal. 322. G4 CONSTITUTION OF THE STATE OF CALIFORNIA. lii-liv the Pacific Ocean, and extending" therein three Kughsli inili's; tlience running in a northwesterly direction and following the direction of the Pacific coast to the 42d degree of north latitude; thence on the line of Raid 42d degree of north latitude to the place of beginning. Also all the islands, harbors, and bays, along and adjacent to the Pacific coast. SCHEDULE. liii. Ilexican laius in force. Section 1. All rights, prosecutions, claims and contracts, as well of individ- uals as of bodies corporate, and all laws in force at the time of the adoption of this constitution, and not inconsistent therewith, until altered or repealed by the legislature, shall continue as if the same had not been adopted. Bemoval of causes. Sec. 2. The legislature shall provide for the removal of all causes which may be pending when this constitution goes into effect, to courts created by the same. Change of government. Sec. 3. In order that no inconvenience may result to the pul;lic service, from the taking effect of this constitution, no officer shall be superseded thereby, nor the laws relative to the duties of the several officers be changed, until the entering- into office of the new officers, to be appointed under this constitution. Eesidence, Sec. 4. The j^rovisions of this constitution concerning the terra of residence necessary to enable persons to hold certain offices therein mentioned, shall not be held to apply to officers chosen by the people at the first election, or by the legislatui'e at its first session. liv. looters. Sec. 5. Every citizen of California, declared a legal voter by this constitution, and every citizen of the United States a resident of this state on tlie day of election, shall be entitled to vote at the first general election iinder this consti- tution, and on the question of the adoption thereof. Constitution to be submitted to j)coi>le. Sec. 6. This constitution shall be submitted to the people for their ratifica- tion or rejection, at the general election to be held on Tuesday, the thirteenth day of November next. The executive of the existing government of California is hereby requested to issue a proclamation to the people, dii-ecting the prefects of the several districts, or in case of vacancy, the sub-prefects, or senior judge of first instance, to cause such election to be held, the day aforesaid, in the respective districts. The election shqjl be conducted in the manner which was prescribed for the election of delegates to this convention, excejDt that the prefect, sub-prefect, or senior judge of first instance, ordering such election in each district, shall have power to designate any additional number of places for opening the polls, and that, in every place of holding the election, a regular poll-list shall be kept by the judges and inspectors of election. It shall also be the duty of these judges and insjoectors of election, on the day aforesaid, to receive the votes of the electors qualified to vote at such election. Each voter shall express his opinion, by depositing in the ballot-box a ticket, Avhcreon shall be written, or printed, "For the Constitution," or "Against the Constitution," or some such words as will distinctly convey the intention of the voter. These judges and inspectors shall also receive the votes for the several officers to be voted for at the said election as herein provided. At the close of the election, the judges and inspectors shall carefully count each ballot, and forthwith make 5 Co liv-lv CONSTITUTION OF THE STATE OF CALIFORNIA. duplicate returns thereof to the prefect, sub-prefect, or senior judge of first instance, as the case may be, of their respective districts; and said prefect, sub- prefect, or senior judg'e of first instance, shall transmit one of the same, by the most safe and rapid conveyance, to the secretary of state. Upon the receipt of said returns, or on the tenth day of December next, if the returns be not sooner received, it shall be the duty of a board of canvassers, to consist of the secretary of state, one of the judges of the superior court, the prefect, judge of first instance, and an alcalde of the district of Monterey, or any three of the afore- mentioned officers, in the presence of all who shall choose to attend, to compare the votes given at said election, and to immediately publish an abstract of the same in one or more of the newspapers of California. And the executive will also, immediately after ascertaining that the constitution has been ratified by the people, make proclamation of the fact; and thenceforth this constitution shall be ordained and estaljlished as the constitution of California. TranHmission to congress. Skc. 7. If this constitution shall be ratified by the people of Cahfoniia, the executive of the existing government is hereby requested, immediately after the same shall be ascertained, in the manner herein dii-ected, to cause a fair copy thereof to be forwarded to the president of the United States, in order that he may lay it l>ofore the congress of the United States. Election of officers. Sec. 8. At the general election aforesaid, viz., the thuieenth day of Novem- ber next, there shall be elected a governor, lieutenant-governor, members of the legislature, and also two members of congress. Meeting of legislature. Sec. [}. If this constitution shall be ratified by the people of California, the legislature shall assemble at the seat of government on the fifteenth day of De- cember next; and in order to complete the organization of that body, the senate shall elect a president pro tempore, until the lieutenant-governor shall be in- stalled into office. Iv. Eej)()rt of canvassers. Sec. 10. On the organization of the legislature, it shall be the duty of the secretary of state to lay before each house a copy of the abstract made by the board of canvassers, and, if called for, the original returns of election, in order that each house may judge of the correctness of the report of said board of can- vassers. Legislative elections — United States senators. Sec. 11. The legislature, at its first session, shall elect such officers as may be ordered by this constitution, to be elected by that body, and within four days after its organization, proceed to elect two senators to the congress of the United States. But no law passed by this legislature shall take effect until signed by the governor after his installation into office. Application for admission into the Union. Sec. 12. The senators and representatives to the congress of the United States elected by the legislature and people of California, as herein directed, shall be furnished with certified copies of this constitution, when ratified, which they shall lay before the congress of the United States, requesting, in the name of the people of CaUfornia, the admission of the State of California into the Amer- ican Union. Installation of officers. Sec 13. All officers of this state, other than members of the legislature, shall be installed into office on the fifteenth day of December next, or as soon there- after as practicable. 66 CONSTITUTION OF THE STATE OF CALIFORNIA. Iv Appointment of legislators. Sec. 14. Until the legislature shall divide the state into counties and senatorial and assembly districts, as directed by this constitution, the following shall be the apportionment of the two houses of the legislature, viz. : The districts of San Diego and Los Angeles, shall jointly elect two senators; the districts of Santa Barbara and San Luis Obispo, shall jointly elect one senator; the dis- trict of Monterey, one senator; the district of San Jose, one senator; the district of San Francisco, two senators; the district of Sonoma, one senator; the district of Sacramento, four senators; and the district of San Joaquin, foui* senators. And the district of San Diego shall elect one member of assembly; the district of Los Angeles, two members of assembly; the district of Santa Barbara, two members of assembly; the district of San Luis Obispo, one mem- ber of assembly; the district of Monterey, two members of assembly; the dis- trict of San Jose, three members of assembly; the district of San Francisco, five members of assembly; the district of Sonoma, two members of assembly; the district of Sacramento, nine members of assembly; and the district of tian Joaquin, nine members of assembly. Salaries, Sec, 15. Until the legislature shall otherwise direct, in accordance with the provisions of this constitution, the salary of the governor shall be ten thousand dollars per annum; and the salary of the lieutenant-governor shall be double the pay of a state senator; and the pay of members of the legislature shall be sixteen dollars per diem, while in attendance, and sixteen dollars for every twentj^ miles' travel by the usual route from their residences, to the j)lace of holding the session of the legislature, and in returning therefrom. And the legislature shall fix the salaries of all officers, other than those elected by the people, at the first election. State expenditures. Sec. 16. The Hmitation of the powers of the legislature, contained in Article Eight of this constitution, shall not extend to the first legislature elected under the same, which is hereby authoiized to negotiate for such amount as may be necessary to pay the exjDenses of the state government. E. SEMPLE, President of the Convention, and Delegate from Benicia. Wm. G. Makcy, Secretary. J. Aram, C. T. BOTTS, E> Bkown, J. A. Cakrillo, J. M. COVARRUBIAS, E. O. Crosby, P. De La Guerra, L. Dent, M. DojnNGUEz, K. H. DiMMICK, A. J, Ellis, S. C. Foster, E. Gilbert, W. M. GwiN, H. W. Halleck, JvujlN Hanks, L. W. Hastings, Henry Hill, J. HoBSON, J. McH. HOLLINSWORTH, J. M. Jones, J. D. Hoppe, T. O. L.ARKIN, Francis J. Lippitt, B. S. Lippincott, M. M. McCarver, John McDougal, B. F. Moore, Myron Norton, P. Ord, Miguel Pedrorena, A. M. Pico, 67 R. M. Price, Hugo Heid, Jacinto Rodriguez, Pedro Sansev.uxe, W. E. Shannon, W. S. Sherwood, J. R. Snyder, A. Stearns, W. M. Steuart, J. A. Sutter, Henry A, Tefft, S. L. Vermeule, M. G. Vallejo, J. Walker, O. M. Wozencraft. Ivi ACT OF ADiVnSSION. %tt of ^^mi$0ion. An Act for the admission of the State of California into the Union. Approved September 9, 1850. Ivi. Admission of California. Whereas, the people of California have presented a constitution, and asked admission into the Union, which constitution was submitted to congress by the jDresident of the United States, by message, dated February thirteenth, eighteen hundred and fifty, and which, on due examination, is found to be republican in its form of government : — Be it enacted by the senate and house of representatives of the United States of America, in congresi< assembled, That the State of California shall be one, and is hereby declared to be one, of the United States of America, and admitted into the Union on an equal footing with the original states in all respects whatever. Bej^resentatives. Sec. 2, And be it further enacted, That, until the representatives in congress shall be apportioned, according to an actual enumeration of the inhabitants of the United States, the State of California shall be entitled to two representatives in congress. Public lands — Non-resident proprietors — Navigable tvaters. Sec. 3. And be it further enacted, That the said State of California is admitted into the Union upon the express condition that the people of said state, through their legislature or otherwise, shall never interfere with the primary disposal of the public lands within its limits, and shall pass no law and do no act Avhereby the title of the United States to, and right to dispose of, the same shall be impaired or questioned; and that they shall never lay any tax, or assessment of any description whatsoever, upon the public domain of the United States, and in no case shall non-resident proprietors, who are citizens of the United States, be taxed higher than residents; and that all the navigable waters within the said state shall be common highways, and forever free, as well to the inhabitants of said state as to the citizens of the United States, without any tax, imiiost or duty therefor: provided, that nothing herein contained shall be construed as recognizing or rejecting the propositions tendered l)y the people of California as articles of compact in the ordinance adopted by the convention which fonued the constitution of that state.*** (a) An'act anowing pfTRoiifi, wlio liavo put improve- provonrnts which arc a part of the realty, because in merits on landK of the Uuitcd Stutcs, to remove them conflict with the act ailiiiiftinR the state into the Uuion. within six months after the lands shall have become Collins vs. Bartlttt, 14 Cal. 371. private property is void, in so far as it relates to im- C8 Slutljcutjcatiou of iUiblic ^ct0, Mttoth^, mh |uDi= rial ProrccDino^, m bttmttn tijc Statc*i. Ivii. An Act to revise and consolidate the statutes of the United States in force on the first day of December, Anno Domini one thousand eight hundred and seventy-three. Approved June 22, 1874. Be it enacted by the senate and house of representatives of the United States in congress assembled: TITLE XIII. CHAPTER SEVENTEEN. EVIDENCE. Authentication of legislative acts and proof of judicial proceedings of states, etc. Sec. 905. The acts of the legislature of any state or territoiy, or of any country subject to tlie jurisdiction of tlie United States, shall be authenticated by having the seals of such state, territoiy, or country affixed thereto. The records and judicial proceedings of the courts of any state or territoiy, or of any such country, shall be proved or admitted in any other court within the United States, by the attestation of the clerk, and the seal of the court annexed, if there be a seal, together with a certificate of the judge, chief justice, or presiding magistrate, that the said attestation is in due form. And the said records and judicial proceedings, so authenticated, shall have such faith and credit given to them in exery court within the United States as they have by law or usage in the courts of the state from which they are taken. Proofs cf records, etc., kept in offices not pertaining to courts. Sec. 90G. All records and exemplifications of books, which may be kept in any public office of an}' state or territoiy, or of any country subject to the jurisdiction of the United States, not appertaining to a court, shall be proved or admitted in an^^ court or office in any other state or territoiy, or in any such countiy, b}' the attestation of the keeper of the said records or books, and the seal of his office annexed, if there be a seal, together with a certificate of the presiding justice of the court of the county, parish, or district in which such office may be kept, or of the governor, or secretary of state, the chancellor or keeper of the great seal of the state, or territoiy, or countiy, that the said attestation is in due form, and by the proper officers. If the said certificate is given by the presiding justice of a court, it shall be further authenticated by 69 Ivii AUTHENTICATION OF PUBLIC ACTS. the clerk or protlionotary of the said court, who shall certify, under his hand and the seal of his office, that the said presiding justice is dul}' commissioned and qualified; or, if given by such governor, secretarj', chancellor, or keeper of the great seal, it shall be under the great seal of the state, territory, or countiy aforesaid in which it is made. And the said records and exemplifica- tions, so authenticated, shall have such faith and credit given to them in every court and office within the United States as they have by law or usage in the courts or offices of the state, territory, or countiy, as aforesaid, from which they are taken. Copies of foreign records, etc., relating to land titles in the United States. Sec. 907. It shall be lawful for any keeper or person having the custody of laws, judgments, orders, decrees, journals, correspondence, or other iiublic documents of any foreign government or its agents, relating to the title to lands claimed by or under the United States, on the ajDplication of the head of one of the departments, the solicitor of the treasury, or the commissioner of the gen- eral land office, to authenticate copies thereof under his hand and seal, and to certify them to be correct and true copies of such laws, judgments, orders, decrees, journals, correspondence, or other public documents, respectively; and when such copies are certified by an American minister or consul, under his hand and seal of office, to be true coi^ies of the originals, they shall be sealed up by him and returned to the solicitor of the treasury, who shall file them in his office, and cause them to be recorded in a book to be kept for that purpose. A copy of any such law, judgment, order, decree, journal, correspondence, or other public document, so filed, or of the same so recorded in said book, may be read in evidence in any court, where the title to land claimed by or under the United States may come into question, equally with the originals. Little S Brown's edition of the statutes to be evidence. Sec. 908. The edition of the laws and treaties of the United States published by Little & Brown, shall be competent evidence of the several public and jjrivate acts of congress, and of the several treaties therein contained, in all the courts of law and equity and of maritime jurisdiction, and in all the tribunals and public offices of the United States, and of the several states, without any further proof or authentication thereof. 70 Ilaturalimtioii i'am^. Iviii. An Act to revise and consolidnte the statutes of the United Stntes in force on tlie first day of December, Anno Domini one thousand eight hundred and seventy-three . Approved June 22, 1874. Be it enacted by the senate and house of representatives of the United States in congress assembled: TITLE XXX. ^^atuvalijation. Aliens, how naturalized. Sec. 2165. An alien may be admitted to become a citizen of the United States in the following manner and not otherwise: First. He shall declare on oath, before a circuit or district court of the United States, or a district or supreme court of the territories, or a court of record of any of the states having common law jurisdiction and a seal and clerk, two years, at least, prior to his admission, that it is bona fide his intention to become a citizen of the United States, and to renounce forever all allegiance and fidelity to anj' foreign prince, potentate, state, or sovereignty, and, particularly, by name, to the prince, potentate, state, or sovereignty of which the alien may be at the time a citizen or subject. Second. He shall, at the time of his application to be admitted, declare, on oath, before some one of the courts above specified, that he will support the constitution of the United States, and that he absolutely and entirely renounces and abjures all allegiance and fidelity to every foreign jDrince, potentate, state, or sovereignty; and, jDarticularly, by name, to the i^rince, j^otentate, state, or sovereignty of which he was before a citizen or subject; which proceedings shall be recorded by the clerk of the court. Third. It shall be made to ai3j)ear to the satisfaction of the court admitting such alien that he has resided within the United States five years at least, and within the state or territory whei'e such court is at the time held, one year at least; and that during that time he has behaved as a man of a good moral character, attached to the principles of the constitution of the United States, and well disposed to the good order and happiness of the same; but the oath of the aj^plicant shall in no case be allowed to prove his residence. Fourth. In case the alien applying to be admitted to citizenship has borne any hereditary title, or been of any of the orders of nobility in the kingdom or state from which he came, he shall, in addition to the above requisites, make an exjiress renunciation of his title or order of nobility in the court to which his application is made, and his renunciation shall be recorded in the court. Fifth. Any alien who was residing within the limits and under the jurisdic- tion of the United States before the twenty-ninth day of January, one thou- 71 hiii NATUEALIZATION LAWS. sand seven liuudred and ninet3--five, may be admitted to become a citizen, on due proof made to some one of the courts above si^ecified, that he lias resided two years, at least, witliiu the jurisdiction of the United States, and one year, at least, immediately preceding his application, within the state or tenitory ■where such court is at the time held; and on his declaring on oath that he will support the constitution of the United States, and that he absolutely and en- tii'ely renounces and abjures all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, and, particularly, by name, to the prince, po- tentate, state, or sovereignty whereof he was before a citizen or subject; and, also, on its appearing to the satisfaction of the court, that during such term of two years he has behaved as a man of good moral character, attached to the constitution of the United States, and well disposed to the good order and hap- l^iness of the same; and where the alien, applying for admission to citizenship, has borne any hereditary title, or been of any of the orders of nobility in the kingdom or state from which he came, on his, moreover, making in the court an express renunciation of his title or order of nobility. All of the proceedings, required in this condition to be pei'foi'med in the court, shall be recorded b}' the clerk thereof. Sixth. Any alien who was residing within the limits and under the jiuisdic- tion of the United States, between the eighteenth day of June, one thousand seven hundred and ninety-eight, and the eighteenth day of June, one thousand eight hundred and twelve, and who has continued to reside within the same, may be admitted to become a citizen of the United States without ha^dng made any previous declaration of his intention to become such; but whenever any person, without a certificate of such declaration of intention, makes application to be admitted a citizen, it must be proved to the satisfaction of the coiu't, that the ai^plicant was residing within the limits and under the jurisdiction of the United States, before the eighteenth day of June, one thousand eight hundred and twelve, and has continued to reside within the same; and the residence of the ajDplicant within the limits and under the jurisdiction of the United States, for at least five yeai*s immediately preceding the time of such application, must be i^roved by the oath of citizens of the United States, w^hich citizens shall be named in the record as witnesses; and such continued residence within the limits and under the jiuisdiction of the United States, when satisfactorily proved, and the place where the applicant has resided for at least five years, shall be stated and set forth, together with the names of such citizens, in the record of the court admitting the applicant; otherwise the same shall not entitle him to be deemed and considered a citizen of the United States. Aliens honorably (lm:harged from military service. Sec. 21GG. Any alien, of the age of twenty-one j'eare and upwaixl, who has enlisted, or may enlist, in the armies of the United States, either the regular or the volunteer forces, and has been, or may he hereafter, honorably discharged, shall be admitted to become a citizen of the United States, upon his petition, without any jirevious declaration of his intention to become such; iind he shall not be required to prove more than one year's residence within the United States pre- vious to his application to become such citizen; and the court admitting such alien shall, in addition to such proof of residence and good moral character, as now provided by law, he satisfied by competent proof of such person's having been honorably discharged from the service of the United States, Minor residents. Skc. 21G7. Any alien, being under the age of twenty-one yeara, who has re- sided in the United States three years next preceding his amving at that age, and who has continued to reside therein to the time he may make application to be 72 NATURALIZATION LAWS. Iviii admitted a citizen thereof, may, after lie arrives at the age of twentj'-one j-ears, and after he has resided five years Avithiu the United States, including the three years of his minority, be admitted a citizen of the United States, without having made the declaration required in the first condition of section twenty-one hun- dred and sixty-five; but such alien shall make the declaration required therein at the time of his admission; and shall further declare, on oath, and prove to the satisfaction of the court, that, for two years next preceding, it has been his bona-fide intention to become a citizen of the United States; and he shall in all other respects comply with the laws in regard to naturalization. Widow and children of declarants. Sec. 2168. When any alien, who has complied with the first condition speci- fied in section twenty-one hundred and sixty-five, dies before he is actually naturalized, the widow and the children of such alien shall be considered as citizens of the United States, and shall be entitled to all rights and privileges as such, upon taking the oath proscribed^"' by law. Aliens of African nativity and descent. Sec. 2169. The provisions of this Title shall apply to aliens of African na- tivity and to persons of African descent. Residence of five years in United States. Sec. 2170. No alien shall be admitted to become a citizen who has not for the continued term of five years next preceding his admission resided within the United States. Alieii enemies not admitted. Sec 2171. No alien Avho is a native citizen or subject, or a denizen of any country, state, or sovereignty with which the United States are at war, at the time of his application, shall be then admitted to become a citizen of the United States; but persons resident within the United States, or the territories thereof, on the eighteenth day of June, in the year one thousand eight hundred and twelve, who had before that day made a declaration, according to law, of their intention to become citizens of the United States, or who were on that day en- titled to become citizens without making such declaration, may be admitted to become citizens thereof, notwithstanding they were alien enemies at the time and in the manner prescribed by the laws heretofore passed on that subject; nor shall anything herein contained be taken or construed to interfere with or prevent the apprehension and removal, agreeably to law, of any alien enemy at any time previous to the actual naturalization of such alien. Children of persons naturalized under certain laws to be citizens. Sec. 2172. The children of persons who have been duly naturalized under any law of the United States, or who, previous to the passing of any law on that subject, by the government of the United States, may have become citizens of any one of the states, under the laws thereof, being under the age of twenty- one years at the time of the naturalization of their parents, shall, if dwelling in the United States, be considered as citizens thereof; and the children of persons who now are, or have been, citizens of the United States, shall, though born out of the limits and jurisdiction of the United States, be considered as citizens thereof; but no person heretofore proscribed by any state, or who has been legally convicted of having joined the army of Great Britain during the revolu- tionary war, shall be admitted to become a citizen without the consent of the legislature of the state in which such person was proscribed. Police court of District of Columbia has no power to naturalize foreigners. Sec. 2173. The police court of the District of Columbia shall have no power to naturalize foreigners. (a) Error in the Roll ; Bhould be pracrihed. 73 Iviii NATURALIZATION LAWS. Naturalization of seamen. Sec. 2174. Every seaman, being a foreigner, who declares liis intention of be- coming a citizen of the United States in any competent court, and shall have sen'ed three years on board of a merchant-vessel of the United States subse- quent to the date of such declaration, may, on his ajjplication to am' competent court, and the production of his certificate of discharge and good conduct during that time, together with the certificate of his declaration of intention to become a citizen, be admitted a citizen of the United States; and every seaman, being a foreigner, shall, after his declaration of intention to become a citizen of the United States, and after he shall have served such three years, be deemed a citizen of the United States for the purpose of manning and serving on board any merchant-vessel of the United States, au^-thing to the contraiy in any act of congress notwithstanding; but such seaman shall, for all purposes of protection as an American citizen, be deemed such, after the filing of his declaration of intention to become such citizen. 74 political Cotic. An Act to establish a political code. Approved March 12, 1872. TITLE OF THE ACT. 1. Title and divisions of this act. Section 1. This act shall be known as The Political Code of the State of California, and is divided into five parts, as follows: Part I. Of the Sovereignty and People of the State, and of the Polit- ical Rights and IJuties of all Persons subject to its Juris- diction 30 II. Of the Chief Political Divisions, Seat of Government, and Legal Distances of the State 75 III. Of the Government of the State 220 IV. Of the Government of Counties, Cities and Toavns 3901 V. Of the Definition and Sources of Law; the Common Law; the Publication and Effect of the Codes; and the Express Repeal of Statutes MG6 PRELIMINARY PROVISIONS. 2. When code takes effect. Sec. 2. This code takes effect at twelve o'clock, noon, of the fii"st day of January, eighteen hundred and seventy -three. 3. Not retroactive. Sec. 3. No part of it is retroactive, unless expressly so declared. 4. Construction of the political code. Sec. 4. The rule of the common law that statutes in derogation thereof are to be strictly construed, has no application to tliLs code. The code establishes the law of this State respecting the subjects to which it relates, and its pro- visions and all proceedings under it are to be liberally construed, with a view to effect its objects and to promote justice. 5. Provisions similar to existing laws, how construed. Sec. 5. The provisions of this code, so far as they are substantially the same as existing statutes, must be construed as continuations thereof, and not as new enactments. 6. Tenure of office. Sec. 6. All persons who, at the time this code takes effect, hold oflSce under any of the acts repealed, continue to hold the same according to the tenure thereof, except those offices which are not continued by one of the codes adopted at this session of the legislatiu-e, and excei^ting offices filled by ap- 75 6-14 POLITICAL CODE. pointment. [Amendment, approved March 30, 1874; Ameyidmenfs, 1873-4, 3; took effect July 6, 1874/"^ 7. Construction of repeal as to certain officers. Sec. 7. "When any office is abolished by the repeal of any act, and such act is not in substance re-enacted or continued in either of the four codes, svicli office ceases at the time the codes take effect. 8. Actions, etc., not affected by this code. Sec. 8. No action or proceeding commenced before this code takes effect, and no right accrued, is affected by its provisions, but the proceedings therein must conform to the requirements of this code as far as applicable. 9. Limitations shall continue to run. Sec 9. When a limitation or period of time prescribed in any existing statute for acquiring a right or barring a remedy, or for any other purpose, has begun to run before this code goes into effect, and the same or any limitation is pre- scribed in this code, the time which has already run shall be deemed part of the time prescribed as such limitation by this code. [Amendment, approved March 30, 1874; Amendments, 1873-4, 1; took effect July G, 1874.^"^ 10. Holidays. Sec. 10. Holidays, within the meaning of this code, are: Every Sunday, the first day of January, the twenty-second da}' of February, the fourth of July, the twenty-fifth day of December, every dhy on which an election is held throughout the State, and every day appointed by the president of the United States, or by the governor of this State, for a public fast, thanksgiving or holiday'. [In the city and county of San Francisco, the covinty clerk is obliged to keep his office open on all election days, for the sole purpose of registering voters, and giving certificates and transfers. See act of March 7, 1876; 1875-6, 142; post 1117.] 11. Holidays. Sec. 11. If the first day of January, the twenty-second day of February, the fourth of July, or the twenty-fifth day of December, fall upon a Sunday, the Monday following is a holiday. [Amendment, adopted March 30, 1874; Amend- ments, 1873-4, 2; took effect July 6, 1874.^'=) 12. Compvdation of time. Sec 12. The time in which any act provided by law is to be done is com- puted by excluding the first day, and including the last, unless the last day is a holida}^ and then it is also excluded. 13. Certain acts not to be done on holidays. Sec 13. "Whenever any act of a secular nature, other than a w'ork of ne- cessity or mercy, is appointed by law, or contract to be jierformed upon a par- ticular day, which day falls upon a holiday, such act maj' be performed upon the next business day with the same effect as if it had been performed upon the day ajijiointed. 14. Heal d<('s. Sec, 16. Words and phrases arc construed according to the context and the approved usage of the langaiage; but technical words and phrases, and such others as have acquired a peculiar and api)ropriate meaning in law, or ai-e de- fined in the succeeding section, are to be coustmed according to such peculiar and appropriate meaning or definition. 17. Worth, xohat they include. Sec. 17. Words used in this code in the present tense inchide the future as well as the present; words used in the masculine gender include the feminine and neu- ter; the singular mmiber includes the plural, and the plural the singular; the word " person" includes a cori:)oration as Avell as a natural person; writing includes printing; oath includes affinnation or declaration; eveiy mode of oral state- ment under oath or affirmation is embraced by the term " testify," and eveiy written one in the term " depose;" signature or subsciiption includes mark, when the person cannot write, his name being written near it, and witnessed by a person who writes his own name as a witness. The following words, also, have in the code the signification attached to them in this section, unless other- wise apparent in the context: 1. The word " property" includes both real and personal property; [2.j The words " real property " are coextensive with lands, tenements and hereditaments ; 3. The words " personal property" include money, goods, chattels, things in action, and evidences of debt; 4. The word " month" means a calendar month, unless othenvise expressed; 5. The word " Avill" includes codicils; 6. The word " writ" signifies an order or precept in wiiting, issued in the name of the people, or of a court or judicial officer; and the word " j)rocess," a writ or summons issued in the course of judicial proceedings; 7. The word " vessel," when used in reference to shipping, includes ships of all kinds, steamboats and steamships, canal boats, and eveiy structure adapted to be navigated from place to place; 8. The term " peace officer" signifies ain- of the officers mentioned in section eight hundred and seventeen of the penal code. 9. The term " magistrate" signifies any one of the officers mentioned in sec- tion eight hundred and eight of the penal code; 10. The word " state," when applied to the different parts of the United States, includes the District of Columbia and the territories; and the Avords "United States" may include the district and ten-itories. [Amendment, op- proved March 30, 1874; Amendments, 1873-4, 2; took e//'ect July 6, 1874.^"' (a) Original section: goods, chattels, evidence of debt, aud "things in Sec. 17. Wht-uevor the terms mentioned in this sec- uctiou." tiou are employed in this code they are emi)loyed in 5. The word " ijroijerty " includes personal aud real the senses hereafter affixed to them; excexit where a propei-ty. different sense plainly appears: 6. The word " month " means a calendar month, nn- 1. The term "signature" includes any name, mark, less otherwise expressed; and the word "year." aud or sign, written with intent to authenticate any instru- also the abbreviation "a. n." is equivalent to the ex- ment or writing. l)ression " year of oiu' Lord." 2. The term " -nTiting " includes both printing and 7. The word "oath" includes "affirmation" in all writing. cases where au affirmation may be substituted for an 3. The term " land," and the phrases, " real estate " oath; aud in like cases the word " swear " iuchides the aud "real property," includes lands, tenements, and word "affirm." Every mode of oral statement under hereditaments, and all rights thereto aud interests oath or affirmation is embraced by the term " tctftily," therein. aud every written one in the term " depose." 4. The words "personal property" include money, 8. The word "state," when applied to the diflferent 77 18-19 POLITICAL CODE. 18. Statutes, laws, or rules inconsistent with code repealed. Sec. 18. No statute, law, or rule is continued in force because it is consistent "with the provisions of this code on the same subject, but in all cases provided for by this code all statutes, laws, and rules heretofore in force in this state, whether consistent or not with the provisions of this code, unless expressly continued in force by it, are repealed and abrogated. This repeal or abroga- tion does not revive any former law heretofore repealed, nor does it affect any right already existing or accrued, or any action or proceeding already taken, except as in this code provided; nor does it affect any private statute not expressly repealed. 19. Certain statutes preserved. Sec. 19. Nothing in either of the four codes affects any of the i:)rovisions of the following statutes, but such statutes are recognized as continuing in force, notwithstanding the provisions of the codes, except so far as ihej have been repealed or affected by subsequent laws: 1. All acts incoii^oratiug or chartei'ing municipal corporations, and acts amending or supplementing such acts. 2. All acts consolidating cities and counties, and acts amending or suj)ple- menting such acts. 3. All acts for funding the state debt, or any part thereof, and for issuing state bonds, and acts amending or su2:)plementing such acts. 4. All acts regulating and in relation to rodeos. 5. All acts in relation to judges of the plains. 6. All acts creating or regulating boards of water commissioners, and over- Beers in the several townships or counties of the state. 7. All acts in relation to a branch state prison. 8. An act for the more effectual prevention of cruelty to animals, ajDproved March thii'tieth, eighteen hundred and sixty-eight. 9. An act for the sujDi^ression of Chinese houses of ill-fame, approved March thirtj'-first, eighteen hundred and sixty-six. 10. An act relating to the home of the inebriate of San Francisco, and to prescribe the powers and duties of the board of managers and the officers thereof, ajoproved April first, eighteen hundred and seventy. 11. An act concerning marks and brands in the county of Siskiyou, approved March twentieth, eighteen hundred and sixty-six. ' 12. An act to prevent the destruction of fish in the waters of Bolinas bay, in Marin county, approved March thirty-first, eighteen hundred and sixty-six. 13. An act concerning trotit in Siskiyou count}', approved Aj^ril second, eighteen hundred and sixty-six. 14. An act to prevent the destruction of fish in Napa river and Sonoma creek, appi'oved January twenty-ninth, eighteen hundred and sixty-eight. 15. An act to prevent the destruction of fish and game in, upon, and around the waters of lake Merritt, or Peralta, in the county of Alameda, approved Mai'ch eighteenth, eighteen hundred and seventy. parts of the United States, includes the District of 13. Words iised in the present tense Include the future Columbia and the territories; and the words " United but exclude the past. States" may include the district and territories. 14. The word " will " includes codicils. 9. Where the term " person " is used in this code to 15. The word " writ " siguilics an order or precept in desii^nate the party whose property may be the subject 'writing, issued in the name of tlie people, or of a court, of any ofifense, action, or proceediiiK.it includes this or judicial officer. Btate, any other state, Kovenimeiit. or c.». The fourth, of that portion of the city and northerly along the eastern line thereof to a point county of Sau Francisco embraced within lines de^ eight imhes north of the northern line tliereof; thence scribed as follows: Commencing at the western bound- at right angles westerly to the centre of Kearny street; ary of the city and county, at a point in a line with thence nortlierly along Kearny street to the northern Kidley street ; thence easterly in a line with and boundaiy of the city and county; thence along the through the centre of Ridley street to the centre of northern and western boundary of the city and county Market street; thence northeasterly along the centre to the place of beginning. of Market street to the centre of Kearny street; thence (c) The original section had the words " Marin, So- northerly along the centre of Kearny street to a point noma. Mendocino" before " Napa." in a line with the northern side of the City Hall or Marin, Sonoma, and Mendocino counties now corn- court-house; thence easterly to and along the northern pose the twenty-second judicial district. See postillS. line of the city hall or court-house to a point sixty-five 89 137-142 POLITICAL CODE. 137. Tivelfih judicial district. [Sec. 137^*^ was superseded by the act given below, jDOst, 142. See also post, 4479.] 138. Thirteenth judicial district. Sec. 138. The thirteenth, of the counties of Tulare, Fresno, Merced, and Mariposa. 139. Fourteenth judicial district. Sec 139. The fourteenth, of the counties of Placer and Nevada. 140. Fifteenth judicial district. [Sec. 140^^' was superseded by the act given below, post, 142. See post, 4479.] 141. Sixteenth judicial district. Sec. 141, The sixteenth, of the counties of Alj)ine, Mono, Inyo, and Kern. 142. Seventeenth judicial district. [Sec. 142-'=' was superseded by the act of Februaiy 20, 1872, given below. See also post, 4479.] [The foregoing sections 128, 129, 137, 140 and 142, in relation to the third, fourth, twelfth, fifteenth and seventeenth judicial districts, though not exjaressly amended or repealed, have been superseded by the following acts:] An Act to create the eigliteenth judicial district, and for other purposes. Approved February 20, 1872; 1871-2, 116. Seventeenth judicial district. Eighteenth judicial district. Section 1. The seventeenth judicial district of this state is hereby di\dded, and the eighteenth judicial district created. The county of Los Angeles shall remain and hereafter constitute the seventeenth judicial district. The counties of San Diego and San Bernardino shall be hereafter known as and constitute the eighteenth judicial district. Suits transferred. Sec 2. Suits brought and matters now pending in the district couri of the counties of San Diego and San Bernardino shall be heard and determined in the eighteenth judicial district, as if such suits had been, after the creation of it, there commenced; and the process of the district court of the eighteenth judicial district shall be as effective for all such purposes as if the same were issued from the seventeenth judicial district. Terms. Sec 3. The terms of the district court of the eighteenth judicial district, during each year, shall commence as follows: In the county of San Diego, on the third Monday of January, April, July, and October; in the county of San Bernardino, on the second Monday of March, June, September, and December. [Amendment approved March 10, 187G; 1875-6, 314; took effectfrom passage.'-'^^ (a) Original section: thence southerly along the eastern line of Kearny Sec. 1.37. The twelfth, of the county of San Mateo street to the lentre of Market street; thence north- and all that portion of the city and county of San Fran- easterly alon^ the centre of IMarket street to the eastern Cisco lying south of a line described as follows: Com- boundary of the city and county, mencing at the western boundary of the city and (h) Original section: county, at a point in a line with the centre of Ridley Skc. 140. The fifteenth, of the county of Contra Costa street; thence running easterly in a Urn', with and and all that i)ortion of the city and county of San through tlie centre of Ridley street to the centre of Francisco not included witliin the limits of the fourth Market street; thence northeasterly along the centre and twelfth judicial districts. of Market street to Kearny street; thence northeast- (c) Original section: erly along the centre of Kearny street to a jtoiut in a Sec. ii'l. The stventet'nth, of the counties of Los line with the northern side of the City Hall or court- Angeles, San Bernardino, and San Diego, house; thence easterly to and ahrng the northern line {d) The original section instead of " third," had the of the City Hall or court-house to a i)oint sixty-live word " second." It also bore the following additional feet from the eastern line of Kearny street; thence at sentence at the end: "Said terms shall continue until right angles southerly to the southern line of the City the time fixed for holding a term in another or the Hall or court-house; thence along the southern line same county in the district, if the business of the of that building to the eaetem line of Kearny street; court shall require it." 90 POLITICAL DIVISIONS OF STATE. 142 Election of judge. Sec. 4. At the special judicial election of the year one thousand eight hun- dred and seventy-three, and every six years tliereafter, a district judge shall ho elected for the eighteenth judicial district; and the judge so elected shall enter upon the discharge of his duties as such on the first day of January after his election. Appointment. Sec 5. The governor shall appoint and commission, immediately after the passage of this act, some suitable person learned in the law, and a resident of said eighteenth judicial district, as district judge of said eighteenth judicial district, -who shall hold his office until his successor shall have been elected and qualified, as provided in .section four of this act. Salanj. Sec. G. The judge of the eighteenth judicial district shall receive a salaiy of foui- thousand dollars per annum, i)ayable in the same manner as the salaries of other district judges of this State. Sec. 7. This act shall take effect and be in force from and after its passage. An Act creating the nineteeuth and twentieth judicial districts, and defining the third, fourth, twelfth and fifteenth judiciul districts. Approved March 8, 1872; 1871-2, 301. Ttcentieth judicicd district. Section 1. The twentieth judicial district shall be comjiosed of the counties of Monterey, Santa Cruz, and Santa Clara. Third judicial district. Sec 2. The thiixl judicial district shall be composed of the county of Ala- meda, and all that portion of the city and county of San Francisco described as follows: Commencing at the eastern boundary line of said city and county, at a point in a line with the centre of Market street; thence southerly along the centre line of Market street to its intersection with the easterl}' line of Kearny street ; thence northerly along said eastern line of Kearny street to the centre of California street; thence easterly along the centre line of California street to the noriherly line of Market street; thence easterly along the northerly line of Market street and in the same course to the eastern boundary of said city and county; thence southerly along said eastern boundaiy of the city and county of San Francisco to the place of commencement. Fifteenth judicial district. Sec 3. The fifteenth judicial district shall be composed of the county of Contra Costa and all that portion of the city and county of San Francisco described as follows: Commencing at a point in the eastern boundary -line of said city and county where the northern line of Market street protracted inter- sects the same; thence southwesterly and along the northern line of Market street to the centre of California street; thence westerly and along the centre of California street to the eastern line of Kearny street; thence northerly along the eastern line of Kearny street to the south line of the City Hall or court- house; thence easterly along the south line of said building to the southeast corner thereof; thence northerly along the east line of said building and in the same direction to a point eight inches north of the noi'th line of said building; thence westerly and parallel with the north line of said building to the centre of Keju-ny street; thence northerly and along the centre of Kearny street to the northern boundary of said city and county; thence easterly and southerly along the boundary of said city and county to the place of beginning. Nineteenth judicial district. Sec 4. The nineteenth judicial district shall be composed of all that portion 91 142 POLITICAL CODE. of the city and county of San Francisco described as follows: Commencing at a point in the centre of Market street in a line -u-ith tlie centre of Larkin street* tbence running northerly and along the centre of Larkin street to a point in the centre of Washington street; thence easterly and along the centre of Wash- ington street to the centre of Kearny street; thence southerly along the centre of Kearny street to the centre of Market street; thence southwesterly along the centre of Market street to the place of commencement. Fourth judicial district. Sec. 5. The fourth judicial district shall be comj)osed of all that portion of the city and count}" of San Francisco described as follows: Commencing at the western boundary of said city and county at a point in a line with the centre of Ridley street; thence easterly and along the centre of Ridley street to the cen- tre of Market street; thence northeasterly and along the centre of Market street to a point in a line with the centre of Larkin street; thence northerly along the centre of Larkin street to the centre of Washington street; thence easterly along the centre of Washington street to the centre of Kearny street; thence southerly along the centre of Kearny street to a point in a line with the north side of the City Hall or court-house; thence easterly to and along the northern line of the City Hall or court-house, sixty-five feet from the eastern line of Kearny street; thence southerly at a right angle to the south line of said City Hall or court-house; thence at a right angle easterly along the south line of said building to the east line thereof ; thence northerly along said east line of said building to a point eight inches north of the north line of said building; thence at a right angle westerly to the centre of Kearny street; thence north- erly along the centre of Kearny street to the northern boundary of said city and county; thence westerly along the northern boundary and southerl}- along the western boundary of said city and county of San Francisco to the place of commencement. Twelfth judicial district. Sec. G. The twelfth judicial district shall be composed of the county of San Mateo and all that portion of the city and county of San Francisco described as follows: Commencing at the western boundary of said city and count}" at a point in a line with the centre of Ridley street; thence limning easterly in a line with and through the centre of Ridley street to the centre of INIarket street; thence easterly along the centre of Market street to a i^oint in a line with the centre of Kearny street; thence northeasterly along the centre of Kearny street to a point in a line with the northern side of the City Hall or court-house; thence easterly and along the northern line of the City Hall or court-house to a point sixty-five feet from the eastern line of Kearny street; thence at a right angle souUiei'ly to the southern line of the Cit}" Hall or court- house; thence along the southern line of that building to the eastern line of Kearny street; then (a) Original section: each six dollars per day; to the porters of the senate Sec. 268. There must be paid to the secretaiy, the and assembly, each four dollars per day; to each corn- assistant secretaries, journal clerk, and minute clerk mittee clerk, appointed by authority of either house, of the senate, and to the chief clerk, assistant clerks, five dollars per day, except the clerks of the judiciary journal clerk, and minute clerk of the assembly, each committees, who must each be paid eight dollars per the sum of eight dollars per day; to the enrolling, day; to the pages, post-oifice pages, postmasters, and engrossing, and copying clerks of the senate and as- paper folders of the senate and assembly, each three sembly, each eight dollars per day; to the sergeant-at- dollars per day. arms of the senate and to the sergeant-at-arms of the (6) The original section had the words " of the dis- assembly, each six dollars per day; to the assistant trict court" after the word " clerk." sergeant-at-arms of the senate and of the assembly, 105 275-282 POLITICAL CODE. 275. Commissio7i to take testimony. Sec. 275. On the filing of such statement, the clerk must issue a commission, directed to two justices of the peace of his county, to meet at a time and place specified in the commission, not less than twenty nor more than thirty days from the date thereof, for the purpose of taking the depositions of such wit- nesses as the parties to the contest may wish to examine. 276. Notice to person interested, by ivhom served. Sec. 276. "Written notice of such contest, specifying the time and place of taking depositions, and a copj' of the statement, certified by the clerk, must be delivered to the person whose election is contested, or if he cannot be found, left at the house where he last resided, by the sheriff of the county in which such person claims his residence, within ten days after such statement is filed. 277. Compelling attendance of loiinesses. Sec. 277. Either of the justices of the peace have power to issue subpoenas for witnesses, at the request of either party, to be served hj the sheriff as other subpoenas; and such justices, Avhen met at the time and j^lace appointed to take such depositions, have the same power to issue attachments aud assess fines against witnesses as is given to justices of the peace in the ti-ials of civil actions. 278. Testimony, hoiv taken. Sec. 278. The justices must meet at the time and place appointed, and take the depositions of witnesses produced by the parties, and may continue the examination from day to day, if necessary. When the examination is closed, they must seal w^ the dej)Ositions taken before them, together with the commis- sion, and transmit the same by mail or express to the clerk with whom the statement was filed. 279. Vacancy in commission, lioxo filled. Sec 279. If at any time either of the just'ces is unable to j)roceed in such examination, the clerk may sui^ply the vacancy by designating any other justice of the peace of the county. 280. Fees of officers. Sec. 280. Officers performing seiTices in a contested election case may chai'ge and collect from the party at whose instance such services were performed the same fees as are allowed them for similar services in civil cases. 281. Testimony to he transmitted to secretary of state. Sec. 281. The clerk must seal up the depositions, the original statement, the copy of the notice served upon the party whose right is contested, and th& commission issued to the justices of the peace, and transmit the same by mail to the secretary of state, indorsing thereon the names of the contesting parties and the branch of the legislature before which such contest is to be tried. The secretary of state must deliver the same, unopened, to the presiding officer of the house in which such contest is to be tried, on or before the second day of the session of the legislature next after taking such dej)ositions, and such presiding ofiicer must immediately give notice to the house that such papers are in his possession. 282. Depositions. Sec. 282. At any time after notice of contest has been given, and before the trial thereof before the proper branch of the legislature, either party may take depositions, to be read on the trial, in like manner and under the same rules as are allowed and required in the cases of depositions to be read on the trial of civil actions; and such depositions when taken, must be sealed up by the officer taking the same, and directed to the secretary of state, who must lUC PUBLIC OFFICEKS. 282-295 keej? the same, unopened, and deliver tliem to the presiding officer of the house in which the contest is to be tried. 283. Further evidence may he taken. Sec. 283. The house before which the contest is pending- may take such other evidence in the case as it deems material. ARTICLE VII. CONTESTING THE ELECTION FOR GOVERNOR OR LIEUTENANT-GOVERNOR, 288. Who may contest. Sec 288. Any elector of the state may contest the election of any person declared elected governor or lieutenant-governor of the State of California. 289. Grounds of contest to he stated in petition. Sec 289. Such elector may, within twenty days after the declaration of the result of the election, deliver to the 2:)residing officer of each house of the legis- lature a verified specification of the grounds of contest. 290. Notice to respondent. Sec 290. As soon as the presiding officers have received the specifications they must make out a notice, in writing, directed to the person whose election is contested, and deliver the same to a sergeant-at-arms, who must serve such notice at once on the jjerson therein named. 291. Notice to houses. Sec 291. The presiding officers must also immediately give notice to their resj)ective houses that such specifications have been received. 292. Trial committee, how chosen. Sec 292. Each house must at once choose seven members of its own body, in the following manner: 1. The names of the members, except the speaker of the assembly, written on similar paper tickets, must be placed in a box; 2. The secretary of the senate, in the presence of the senate, and the clerk of the assembly, in the pi'esence of the house, must draw from their respective boxes the names of seven members of each. 293. Notice of choice. Sec 293. As soon as the names are drawn, notice of the names of members drawn in one house must be given to the other, and the names of the fourteen members drawn must be entered on the journals of each house. 294. Poivers of committee. Sec 294. The members thus selected constitute a committee to try such contested election, and for that purpose must hold their meetings publicly at the seat of government at such time and place as they may designate, and may adjourn from day to day, or to a day certain, until such trial is determined. They have power to send for persons and papers, and to take all necessaiy means to procure testimony, extending like privileges to each party to the con- test. They must report their judgment in the j^remises to both houses of the legislature, which report must be entered upon the journals. 295. Judgment of committee. Sec 295. The judgment of the committee thus reported is final and con- clusive. 107 300-309 POLITICAL CODE. AETICLE VIII. ATTENDANCE AND EXAMINATION OF WITNESSES BEFOEE THE LEGISLATURE AND COMMITTEES • THEREOF. 300. Subpcenas. Sec. 300. A subpoena requiring; the attendance of any witness before either house of the legislature or a committee thereof may be issued by the presi- dent of the senate, speaker of the house, or the chairman of any committee be- fore whom the attendance of the witness is desired; and it is sufficient if: 1. It states whether the proceeding is before the assembl}^ or senate or a committee; 2. It is addressed to the witness; 3. It requires the attendance of such witness at a time and place certain; 4. It is signed by the president of the senate, speaker of the assembly, or chairman of a committee. 301. Service of subpcenas. Sec. 301. The subpoena may be served by any person who might be a witness in the matter, and his affidavit that he delivered a copy to the witness, is evi- dence of seiTice. [Amendment, cqyproved March 30, 1874; Amendments 1873-4, 4; took effect July 6, 1874.^"' 302. Contempt. Sec. 302. If any witness neglects or refuses to obey such subpoena, or api^earing, neglects or refuses to testify, the senate or assembly may, by reso- lution entered on the journal, commit him for contempt. 303. Compelling attendance. Sec. 303. Any witness neglecting or refusing to attend in obedience to subiDoena may be arrested hj the sergeant-at-arms and brought before the senate or assembly. The only warrant or authority necessary to authorize such arrest is a copj' of a resolution of the senate or assembly, signed by the presi- dent of the senate or speaker of the assembly, and countersigned bj- the secretaiy or clerk. 304. Witnesses not to be held to answer criininally — Refusal to testify. Sec. 304. No i^erson sworn and examined before either house of the legisla- ture, or any committee thereof, can be held to answer criminally or be subject to any 2:»enalt3^ or forfeiture for any fact or act touching which he is required to testify; nor is any statement made or paper produced byanj^such witness com- petent evidence in any criminal proceeding against such witness; nor can such witness refuse to testify to any fact or to produce an}'' paper touching which he is examined, for the reason that his testimony or the production of such paper may tend to disgrace him or render him infamous. Nothing in this section exempts any witness from prosecution and punishment for perjury committed by him on such examination. ARTICLE IX. enactment of STATUTES. 309. Bills received by governor to be indorsed by pjrivate secretary. Sec 309. Every bill must, as soon as delivered to the governor, be indorsed as follows: "This bill was received by the governor this day of , eighteen ." The indorsement must be signed by the private secretary of the governor. (a) The original section had the word " might" instead of " may." 108 PUBLIC OFFICEES. 310-325 810. Approval of bills. Sec. 310. When the governor approves a bill he must set his name thereto, with the date of his approval. 311. Bills returned tvithout appiroval. Sec. 311. When a bill has passed both houses of the legislature and is returned by the governor without his signature and with objections thereto, and upon a reconsideration jDasses both houses by the constitutional majority, it must be authenticated as having become a law by a certificate indorsed thereon or attached thereto in the following form: " This bill having been returned by the governor with his objections thereto, and after reconsideration having passed both houses by the constitutional majority, it has become a law this day of , A. D. ," which indorsement, signed by the president of the senate and speaker of the assembly, is a sufficient authentication thereof. Such bill must then be delivered to the governor and by him must be deposited with the laws in the office of the secretary of state. 312. Return, when house not in session. Sec. 312. If, on the day the governor desires to return a bill without his ap- proval, and with his objections thereto to the house in which it originated, that house has adjourned for the day (but not for the session), he may deliver the bill with his message to the presiding officer, secretary, clerk, or any member of such house, and such delivery is as effectual as though returned in open session, if the governor, on the first day the house is again in session by message notifies it of such delivery, and of the time when, and the person to whom such delivery was made. 313. Bills remaining with governor more than ten days. Sec 313. Every bill which has passed both houses of the legislature, and has not been returned by the governor within ten days, thereby becoming a law, is authenticated by the governor causing the fact to be certified thereon by the secretary of state in the following form: "This bill having remained with the governor ten days (Sundays excepted), and the legislature being in session, it has become a law this day of , a. d. ," which certificate must be signed by the secretarj^ of state, and deposited with the laws in his office. AKTICLE X. PROMULGATION OF STATUTES. 318. Publication and distribution of statutes . Sec. 318. The publication and distribution of statutes is provided for in Chapter III, Title I, Part III, of this Code. [See post, 409 and 526-537.] ARTICLE XI. OPERATION OF STATUTES. 323. When statutes take effect. Sec. 323. Eveiy statute, unless a different time is prescribed therein, takes effect on the sixtieth day after its passage. 324. When joint resolutions take effect. Sec. 324. Every joint resolution, unless a different time is prescribed therein, takes effect from its passage. 325. Effect of amendment. Sec 325. Where a section or part of a statute is amended, it is not to be con- sidered as having been repealed and re-enacted in the amended form; but the lO'J 325-334 POLITICAL CODE. portions which are not altered are to Le considered as having been the law from the time when they were enacted, and the new provisions are to be con- sidered as having been enacted at the time of the amendment. 326. Construction of statutes. Sec. 326. The general rules for the construction of statutes are contained in the preliminary provisions of the different codes. 327. Repeal of statutes. Sec. 327, Any statute may be repealed at any time, except when it is other- wise provided therein. Persons acting imder any statute are deemed to have acted in contemplation of this power of repeal. 328. Act repealed not revived by repeal of repealing act. Sec 328. No act or part of an act, rejiealed by another act of the legislatvire, is revived by the repeal of the repealing act without express words reviving such repealed act or part of an act. 329. Repeal of laics creating criminal offenses, effect of. Sec. 329. The repeal of any law creating a criminal offense does not constitute a bar to the indictment and punishment of an act already committed in violation of the law so repealed, unless the intention to bar such indictment and punish- ment is expressl}' declared in the repealing act. 330. Amendatory act, ivhen void. Sec. 330. An act amending a section of an act repealed is void. AKTICLE XII. PUBLIC REPORTS. 332. When state officers, etc., are to report. Sec. 332. All officers, boards of officers, commissioners, trustees, regents, and directors, required by law to make reports to the governor or legislature, except the controller of state, must send such reports to the governor before the first day of August, in the year eighteen hundred and seventy-three, and in every second year thereafter. 333. Reports, printing of. Sec. 333. The superintendent of state printing must j^rint such reports before the last Monday in November next after the receijit thereof. [Amendment, ap- ptroved March 11, 187G; Amendments 1875-6, 9; took efeci sixtieth day after passage.^"'' 334. Number to be printed. Sec 334. There must be printed: Of the report of the secretary of state, twelve hundred copies; Of the report of the controller of state, two thousand copies; Of the report of the state treasurer, two hundred and fifty coj^ies; Of the report of the surveyor-general, two thousand five hundred copies; Of the report of the superintendent of public instruction, four thousand five hundred copies; Of the report of the attorney-general, one thousand copies; Of the report of the adjutant-general, six hundred copies; Of the report of the state librarian, six hundred copies; Of the report of the fish commissioners, twelve hundred cojjies; Of the report of the directors, resident physician, visiting physicians of the insane asylum, eighteen hundred copies; (a) The original section had the words " state printer " instead of " superintendent of state printing." 110 PUBLIC OFFICERS. 334-335 Of the report of the directors of the state prison, eighteen hundred copies; Of the report of the insurance conjniissioner, eight hundred copies; Of the report of the state board of harbor comniissioners, twelve hundred copies; Of the report of the regents of the university, twelve hundred copies; Of the report of the trustees of the asylum for the deaf, dumb, and blind, eight hundred copies; Of the report of the state board of equalization, two thousand copies; Of the report of the state board of health, one thousand copies; Of the report of the state agricultural society, one thousand copies; Of the report of the commissioners to manage the Yosemite Valley and Mari- posa big tree grove, five hundred copies. [Amendment, approved March 11, 1876; Amendments 1875-6, 9; took effect sixtieth day after passage}^^ 335. Distribution of reports. Sec. 335. The reports must be delivered by the superintendent of state print- ing as follows : To the governor, fifty copies of each report; To the state librarian, ten copies of each report; To the secretary of state, thirty copies of each report; To the superintendent of public instruction, two thousand copies of his re- port, for distribution to school trustees and teachers, and for exchange with other states; To the surveyor-general, one thousand copies of his report, for distribution to the county surveyors, assessors, and county clerhs of the several counties, and for exchange with other states; To the adjutant-general, two hundred and fifty copies of his report, to be distributed at his discretion; To the attorney-general, one hundred copies of his report, for distribution to the several district attorneys of the state ; To the controller, two hundred cojiies of his report; To the secretary of state, two hundred copies of his report; To the state treasurer, one hundred cojDies of his report; To the state librarian, one hundred and fifty copies of his report; To the officers of each of the insane asylums, tw^o hundred copies of their report; To the directors of the state prison, one hundred copies of their report; To the insurance commissioner, one hundred copies of his report; To the regents of the university, two hundred coj)ies of their report; To the trustees of the asylum for the deaf, dumb, and blind, three hundred copies of their report; To the fish commissioners, two hundred copies of their report; To the state board of health, two hundred copies of their report; To the officers of the state agricultural society, two hundred copies of their report; To the commissioners to manage the Yosemite valley and the Mariposa big tree grove, one hundred copies of their rej^ort. And the remaining copies thereof : one third to the order of the sergeant-at- arms of the senate, and two thirds to the order of the sergeant-at-arms of the assembly, to be by them distributed pro rata to the members of the senate and assembly next to convene. (a) The original section provided for the following missioners, 1200; state board of harbor commissioners, nuTubersofreiDorts: secretary of state, 1200; controller, 1200; regents of university, 2400; state agricnltural 2G40; treasurer, 2160; surveyor-general, 52b0; superin- society, I'iOO; deaf, dumb, and blind asylum, 1200; state tendent of public instruction, 5280; attorney-general, board of health, 2400: insurance commissioner, 1000. 120ii; adjutant-general, 12(0; state librarian, I'JdO; fish It was previously amended by act of March 30. 1874: commissioners, 1200; insane asylum, 2400; state prison, Amendments 1873-4, 4, so as to omit the provision re- 2400; state board of equalization, 2400 ; capitol com- specting the report of the insxxrance commissioner. Ill 335-341 POLITICAL CODE. No report must contain more than one hundred pages of printed matter, except the report of the controller of state. [Ameridment, approved March 11, 1876; Amendments 1875-6, 11; took effect sixtieth day after passage .'^"^ 336. To be printed in English. Sec. 336. All rejiorts must he printed in the English language. 337. Report of insurance commissioner to be printed and distributed. Sec. 337. Of the report of the insurance commissioner, the commissioner must have printed, at the expense of his office, one thousand copies, and must deliver of the same as follows: To the governor, twenty copies; To the state libraiian, ten coj)ies; To the secretary of state, thirty copies; To the sergeant-at-arms of the senate, eighty copies; To the sergeaut-at-arms of the assembly, one hundred and sixty copies; And the residue must he distributed by the commissioner in furtherance of the interest of insurance. [Neiv section, approved March 30, 1874; Amendments 1873-4, 7; took effect July 6, 1874. CHAPTEE III. EXECUTIVE OFFICERS. Article I. Classification, Number, and Designation of Executive Officers... 341 II. Mode of Ei,ection or Appointment, and term op Civil Executive Ofj;'icer3 348 III. Governor 380 IV. Lieutenant-Governor 396 V. Secretary of State 407 VI. Controller 433 VII. Treasurer 452 VIII. Attorney-General 470 IX. Surveyor-General 483 X. Kegister of the State Land Office , 497 XI. Superintendent of Public Instruction 512 XII. State Printer 52fi XIII. State Geologist 548 XIV. Sealer of Weights and Measures 561 XV. Inspector of Gas Meters 577 XVI. Insurance Commissioner 594 XVII. Fish Commissioners 642 XVIII. Board of Examiners 654 XIX. Other Executive Officers 695 ARTICLE I. CLASSIFICATION, NIJMBEB, AND DESIGNATION OF EXECUTIVE OFFICERS. 341. Classification of executive officers. Sec. 341. Executive officers are either: 1. Civil; or, 2. Military. (o) The original section had the words " state print- ies of their report; the state board of equalization 200 er " instead of " superintendent of state printing," and copies of tlicir nport. and oniitti^d the coinniissioners did not have the last senteni-i- coiiuiicijciuK with the of the Ydseniitf Valley and MarilJUHa hit; tree j^rove. words " no report must contain." It difTena from the It was privicMisly an'icndcd bv act of March 30, 1874; aniendni'ut in the text by providing; that the superin- Aniendnicnts 1873-4, 5, so as to give to tin; state treasiirer timdent of jinblii- instniction Khonld liave 2500 copies instead of the state librarian 10 copies of each report of his report; the adjutant-Kcneral 500 copies of liis and to omit any xjrovision for the insurance commis- report; the state librarian 200 copies of his report; the sioner. In other respects that amendment was sub- trustees of the deaf, dumb, and blind asylum 500 coiJ- stantlally the same as the original section. 112 PUBLIC OFFICEES. 342-343 342. Military officers. Sec. 342. Military officers are designated and their duties prescribed in Title IV of Part III of this Code. [See post, 1895-2117.] 343. Designation and number of civil executive officers. Sec. 343. The number and designation of the civil executive officers are as follows : A governor; A private secretary for the governor; An executive clerk for the governor; A lieutenant-governor; A secretary of state; A deputy secretary of state; A clerk for the secretary of state; Two recording clerks for the secretary of state; A general clerk for the secretary of state; Two special clerks for the secretary of state; A controller; A deputy controller; A bookkeeper for the controller; Five clerks for the controller. A treasurer; Two clerks for the treasurer; An attorney-general; A clerk for the attorney-general; A surveyor-general; A deputy surveyor-general; Three clerks for the surveyor-general; A register of the state laud office; A deputy register of the state land office; Two clerks for the register; A superintendent of public instruction; A deputy for the superintendent of public instruction; A clerk for the superintendent of public instruction; A state printer; [The office of state printer was abolished and that of "superintendent of state printing" created by act of March 26, 1872; 1871-2, 554. See post, 526.] A state geologist; A state sealer of weights and measures; An inspector of gas meters; A vaccine agent; A commissioner of immigration; An insurance commissioner; A deputy for the insurance commissioner; Three state capitol commissioners; Three tide land commissioners; Three members of the state board of tide land commissioners; [The state board of tide land commissioners was abolished by act of February 4, 1876; see post, 365.] Four port wardens for the port of San Francisco; A port warden for each port of entry except San Francisco; Three state harbor commissioners; Three harbor commissioners for the port of Eureka; Six pilots for each harbor where there is no board of pilot commissioners; 8 . 113 343-351 POLITICAL CODE. Three members of the marine board for the port of San Francisco; [The marine board was abolished by act of December 22, 1875. See j^ost, 2583.] Three members of tlie board of pilot commissioners for the ports of San Francisco, Mare Island, and Benicia. Three members of the board of pilot commissioners for Humboldt bay and bar ; Three fish commissioners; Five members of the board of health of San Francisco; Five members of the board of health of Sacramento; Seven members of the state board of health; A president and nine directors of the state board of agriculture; Three members of the state board of equalization; Twenty-two regents of the university of California; Ten members of the state board of education; Seven trustees of the state normal school; Five trustees of the state library; A state librarian; Two deputy state librarians; A librarian of the supreme court library; Three directors of the state prison; Five directors of the insane asylum; A medical superintendent of the insane asylum; Three assistant physicians of the insane asylum; A treasurer of the insane asylum; Five trustees of the asylum for the deaf, dumb, and blind; Three trustees of the state burying grounds; Kine commissioners of the Yosemite valley and Mariposa big tree grove; Three members of the board of examiners; A clerk for the board of examiners; Such other officers as fill offices created by or under the authority of the gen- eral laws for the government of counties, cities, and towns, or of the charters or special laws resj^ecting the same, or of the health, school, election, road, or revenue laws. AKTICLE II. THE MODE OF ELECTION OR APPOINTMENT AND TERM OF OFFICE OF CIVIL EXECUTIVE OFFICERS. 348. Cciiain officers elected. Sec 348. The mode of election of the governor, lieutenant-governor, secre- tary of state, controller, treasurer, attorney -general, surveyor-general, and su- perintendent of public instruction is prescribed by the constitution. 349. State printer. Sec 319. Tlie state printer is elected at the same time as the state officers mentioned in the preceding section, and holds his office for the term of foui* years from the first Monday in December next succeeding his election. [The office of state printer was abolished and that of " superintendent of state printin- "' created by act of March 20, 1872; 1871-2, 554. See post, 52G.] 350. J.'iyisln- of land office. Sec. 350. The surveyor-general is ex officio register and the deputy surveyor- general is ex-) Repealed section: Sec-. 3(;n. Tbr- iiiublic rev- enues; 0. To keej) and state all accounts in which tlie state is interested; 7. To keep an account of all warrants drawn upon the treasurer, and a sepa- rate account under the head of each specific appropriation, showing at all times the unex^^ended balance of such appropriation; 8. To keep an account between tlie state aud the treasurer, and therein charge the treasurer with the balance in the treasury wlien he came into office, and with all moneys received by him, and credit liim witli all warrants drawn on and paid by him; 9. To keep a register of warrants, showing the fund upon which they are drawn, the number, in whose favor, for what service, the appropriation applica- 122 PUBLIC OFFICEES. 433-435 ble to the payment thereof, when the liability accrued, and a receii:»t from the person to whom the warrant is delivered; 10. To audit all claims against the state in cases where there is [are] sufficient provisions of law for the payment thereof; 11. To examine and settle the accounts of all persons indebted to the state, and to certify the amount to the treasurer, and upon presentation and tiling of the treasurer's receipt therefor to give such jierson a discharge and charge the treasurer therewith; 12. In his discretion to require any person presenting an account for setth- ment to be sworn before him, and to answer, orally or in writing, as to any facts relating to it; 13. To require all persons who have received any moneys belonging to the state and have not accounted therefor to settle their accounts; 14. In his discretion to inspect the books of any person charged with the receipt, safe keeping, or disbursement of public moneys; 15. In his discretion to require all persons who have received moneys or se- curities, or have had the disposition or management of any i^rojDerty of the state of which an account is kei:)t in his office, to render statements thereof to him; and all such jDersous must render such statement at such times and in such form as he may require; 16. To direct and superintend the collection of all moneys due the state, and institute suits in its name for all official delinquencies in relation to the assess- ment, collection, and payment of the revenue, and against persons who by any means have become possessed of public money or property and fail to pay over or deliver the same, and against all debtors of the state; of Avhich suits the courts of Sacramento county have jurisdiction, without regard to the residence of the defendants; 17. To draw warrants on the treasurer for the paj^ment of moneys directed by law to be paid out of the treasury; but no warrant nuist be drawn unless authorized by law, and upon an unexhausted specific aj^propriation provided by law to meet the same. Every warrant must be drawn upon the fund out of which it is payable, and specify the service for which it is drawn, when the liability accrued, and the specific appropriation aj^plicable to the j^ayment thereof; 18. To furnish the state treasurer with a list of wai-rants drawn upon the treasury ; 19. To have printed and forwarded to the auditor of each county blank state licenses; 20. To authenticate with his official seal all drafts and waiTants drawn by him, and all copies of papers issued from his office; 21. To perform the duties of a member of the state board of equalization, and of the state board of tide land commissioners, and such other duties as are prescribed by law. 434. Certificate of settlement. Sec. 434. The certificate mentioned in subdivision 11 of section 433 must show by whom the payment is to be made, the amount thereof, and the funds into which it is to be paid, and must be numbered in order, beginning with number one at the commencement of each fiscal year. 435. Special duties connected with school fund. Sec 435. The controller must keep a separate account of the school fund, and of the interest and income thereof, together with such moneys as may be raised by special tax or otherwise for school purposes. He must, on the first day of February and on the first day of August of each year, report to the 123 435-443 POLITICAL CODE. superiutendent of public instruction a statement of the securities belonging to the school fund, of the moneys in the treasury subject to apportionment, and the several sources from which they accrued. He must draw his warrant on the state treasurer in favor of any county treasurer whenever such county treasurer jDresents, with his indorsement, an order drawn by the superintendent of pul)lic instruction in favor of such county, and the warrant so drawn is not subject to the provisions of Article XVIII of this chapter. 436. Order in ichich warrants must be drawn. Sec 436. All warrants for claims which have been audited by the board of examiners, and filed in his office, must be drawn in the order of the numbers l^laced upon them by that board. 437. Proceedings against defaulters. Sec. 437. Whenever any person has received moneys, or has money or other personal property which belongs to the state by escheatment or otherwise, or has been intrusted with the collection, management, or disbursement of any moneys, bonds, or interest accruing therefrom, belonging to or held in trust by the state, and fails to render an account thereof to, and make settlement with the controller within the time prescribed by law, or when no particular time is specified, fails to render such account and make settlement, or who fails to pay into the state treasuiy any moneys belonging to the state, upon being required so to do by the controller, within twenty days after such requisition, the con- troller must state an account with such person, charging- twenty-five per cent, damages, and interest at the rate of ten per cent, per annum from the time of failure; a copj- of which account in any suit therein is i^iima facie evidence of the things therein stated. But in case the controller cannot for want of in- formation state an account, he may, in any action brought by him, aver that fact, and allege generally the amount of money or other projDerty which is due to or which belongs to the state. [Amendment, appi^oved March 30, 1874; Amendments 1873-4, 7; took effect July G, 1874. "^^ 438. Salary. Sec. 438. The annual salary of the controller of state is foiu' thousand dollars. 439. Salary of deputy controller. Sec. 439. The annual salary of the deputy controller is three thousand dollars. 440. Salary of bookkeeper. Sec. 440. The annual salary of the bookkeej)er for the controller is twenty- four hundred dollars. 441. Salary of clerks. Sec 441. The aniiual salary of each clerk in the controller's office is eighteen hundred dollars. 442. Official bond. Sec 442. The controller must execute an official bond in the sum of fifty thousand dollars. 443. Controller to make annual estimate for school expenses. Sec. 443. The state controller must, between the tentb day of August and the first day of September of each year, estimate the amount necessary to raise the sum of seven dollars for each census child, between the ages of five and (i) Tlif original Bcction did not have the words " or moneyB Ix-lonKinf? to the Btate;" nor the last sentence baH money or other personal iiroperty which belongs of the above uiiK-ndiiicnt. It had the word " primary" to the state by esi-heatnient or otherwise;" nor tlie instead of " prima facie." worda " or who fails to pay into the state treasury any 124 PUBLIC OFFICERS. 443-452 seventeen j^ears, in this state, which shall be the amount necessary to be raised by ad valorem tax for school purposes during the year; which amount the con- troller must immediately certify to the state board of equalization. [New f (o) The original sectionH SSO, 531, SSa, 533, 534, 535, Ing the amendments to the above-named sections. 53fi Hnd 537 related to the conipeiisutiou of the state See section 538. printer. Thej- wits Buperseded by " An A<-t to establish As the original sections throw no light upon the a state printing (iflire and to in-ate the nflicj of super- amendments, and are consequently unimportant, they iutendent of sti^tc printing," api>roved March 20, 1872; are omitted. 1871-'-', 554. This act was repealed by the act contain- 132 PUBLIC OFFICERS. 532-534 532. Paper, how to he supplied. Sec. 532. In July of each year the superintendent of state printing shall sub- mit to the state board of examiners samples of the various kinds, sizes, and qualities of paper that will probably be required in his office during the year commencing on the then next first Monday in October, an estimate of the proba- ble quantity of each kind, size, and quality that will be so required. Upon being satisfied that the kinds, sizes, quantities, and qualities of paper so sug- gested will be required, they shall direct the superintendent of state printing to advertise for thirty days in one dail}^ newspaper published in the city of San Francisco, one in New York city, and one daily new^spaper published in the city of Sacramento, for proposals to furnish such paper, or so much thereof as may be required during the year commencing as aforesaid, which bids shall be opened in his office at twelve o'clock si. on the day appointed, in the presence of the said superintendent and at least two of the state board of examiners; and the state board of examiners and the said superinteudent of state printing shall constitute a board to award the contract to the lowest responsible bidder. No bid shall be considered unless accompanied by a certified check in the sum of two thousand dollars, gold coin, payable to the governor for the use of the people of the State of California, conditioned that if the bidder receives the award of the contract he will, wdthin thirty days, enter into bonds in the sum of ten thousand dollars, with two or more sureties, to be approved by the gov- ernor of the state, that he will faithfully perform the conditions of his con- tract. AH bids must be for the furnishing and delivery of the paper and mate- rials at the state printing office in the city of Sacramento, so that the state shall not be charged with any cost of transportation or delivery, which must be specified in the advertisement for bids. If all the bids opened shall be deemed too high by said board, they may decline them and advertise again. If the second set of bids are considered too high, the said board may again decline them, and may purchase said paper in open market. The prices paid by the board shall in no case be higher than the lowest price at which such paper was offered to be furnished by the bids so rejected. [Ameyidmenf , approved Aprils, 1876; Amendments 1875-6, 19; took effect from passage}"'' 533. Ruling, folding, binding, etc. Sec. 533. All ruling, folding, and folding and stitching, and binding required to be executed for the state, shall be done under the supervision of said superin- tendent. He shall advertise for thirty days in one daily newspaper published in the cit}^ of San Francisco, and one daily newspajDcr published in the city of Sacramento, specifying the character of the binding, folding, and stitching to be bid upon, for proposals to do all such folding, folding and stitching, ruling and binding, all of which work shall be done in the city of Sacramento, and on the day appointed he shall, in the presence of the board of examiners, open the bids that may be received, and said superintendent of state printing and said board of examiners shall award said contract to the lowest responsible bidder or bidders therefor. [Amendment, approved April 3, 1876; Amendments 1875-6, 20; took effect from passage}"^ 534. Salarij. Sec 534. The superintendent of state printing shall receive a salary of twenty-four hundred dollars per annum, payable monthly, out of any money in (a) The original sections 530, 531, 532, 533, 534, fiSS, ing the amendments to the above-named sections. 536 and 537 rel;;ted to the compensation of the state See section n38. printer. They weresiipersededby" An Act to establish As the original sections throw no light upon the a state printing office and to create the office of super- amendments, and are consequently unimportant, they Intendent of state printing," approved March 26, 1872; are omitted. 1871-2, 554. This act was repealed by the act contain- 133 534-538 POLITICAL CODE. the general fund not otherwise appropriated. [Aviendmenf , approved April 3, 1876; Amendmerds 1^1^-Q>, 20; took efftxi from passage}"'' 535. Appropriation for repairs of machinery . Sec. 535. Whenever any appropriation is made for the support of the state printino- office, a sum not exceeding one thousand dollars thereof shall be ap- jjlied, when necessary, to and used for the jDUi-j^ose of repairing the present and purchasing new machinery of the state printing office, in each fiscal year for which the approj^riation is made. [Amendment, approved April 3, 1876; Amend- wien/s 1875-6, 20; took effect from passage.'-"'' 536. Appropriation for contingent expenses, etc. Sec. 536. Whenever any money is approjjriated for the sup^Dort of the state printing office, a sum not exceeding the sum of one thousand dollars thereof shall, in each fiscal year for which the appropriation is made, be ajDplied to and used for the purpose of paying wages to employees temporarily emjiloyed, Avhen the amount due any employee shall be for less than a week's work, and other contingent expenses of the state printing office. The superintendent of print- ing shall keep an itemized account of all expenditures chargeable against the sum of money mentioned in this and the next preceding section, and none of said money shall be drawn from the treasury except upon the warrant of the controller. The controller, so long as there is any of the money remaining in any one year in the treasury, upon the presentation to him of an itemized claim verified by the oath of the superintendent of printing, shall draw his warrant on the treasurer for the same, specifying in said warrant that it is payable out of the fund provided in this or the preceding section, and the treasurer shall pay the same on presentation. [Amendment, ajiproved April 3, 1876; Amend- ments 187 o-6, 21; took effect from passage .'^^ 537. Payment of wages and salaries. Sec. 537. The state treasurer is hereby authorized, when the genei-al fund is exhausted, to advance the money on the controller's warrants, drawn for wages and salaries of the employees in the state printing office, out of any pubUc funds in the treasury, which warrants shall be his vouchers until there is money in the general fund to cancel them; provided, that this section shall not apply to any fund against Avhich there are any warrants then due, or to become due, or so as to keep claimants out of their just demands. Any sum of money re- maining unexpended of the ajipropriation heretofore made for the purchase of materials for the state printing office is hereby appropriated to the payment of claims due for the construction of the state jirinting office. [Amendment, ap- jyroved April 3, 1876; Amendments 1875-6, 21; took efectfrom passage. '-'''' 538. C']iart.<, ma])S, diagrams, engraving and, lithographs. Sec. 538. When any chart, map, diagram, or other engraving shall be re- quired to illustrate any document oi'dered to be printed, such chart, map, diagi'am, or engi-aving, shall be i:)rocured b}'' the superintendent of state print- ing, under the direction of the board of examiners. No bills for engraving or lith(jgrai)hing, or lithograph printing, other than the above, shall be alloAved by the board of examiners; and the superintendent of state printing shall ascer- tain the whei-eabouts, and obtain all lithograph and other property of a similar nature belonging to the state, and preserve them. All state printing shall be (II) TbC) oriKinal BcctidnH 530, .531, r)32, 533, 5.3i, 53.'3, ing the amendmcuts to tho above-named sections. 63f; find .',37 nlatid to t)je (■oiiii)enKiitioii of the stnte Sec section 53S. printer. They were KUiierscded by "An Act to establish As the original sections throw no light upon the a state printing office and to i-reate the office of Kupcr- amendments, and are consequently unimportant, they intendent of state printing," approved March 20, 1H72; are omitted. 1871-2, 554. This act was repealed by the act contain- 134 PUBLIC OFFICEES. 538 done in the state printing office. [Neiv section, approved April 3, 1876; Amend- ments 1875-6, 21; took effect from passage. Au Act to ameud the political aucl penal codes, concerning public printing, and for other purjjoses. Approved April 3, 1876; Amendments 1875-6, 16. [The first twelve sections of this act contain the amendments to sections 526, 528, 530, 531, 532, 533, 534, 535, 536 and 537 of the Political Code, and the new sections 538 of the Political Code and 99 and 100 of the Penal Code therein inserted. It has an additional section as follows:] Acts repealed. Sec. 13. An act entitled " An Act to provide for the fitting up and use of the governor's mansion as a state printing office and state armory," approved March 30, 1874, and also an act entitled "An Act to establish a state printing office, and to create the office of su^perintendent of state printing," approved March 26, 1872, are hereby repealed. This act shall take effect and be in force from and after its passage. An Act for the support of the state printing ofl&ce. Approved December 22, 1875; 1875-6, '4. Money appropriated for contingent expenses. Section 1. The sum of one thousand dollars is hereby appropriated, out of any money in the state treasury not otherwise appropriated, for the contingent expenses of the superintendent of state printing for the twenty-seventh fiscal year; for the payment of postage, expressage, freighting, telegraphing, and wages due employees, when the amount due any employee shall be for less than a week's work. Appropriation for support of. Sec 2. The sum of forty thousand dollars is appropriated out of the general fund for the suj)port of the state printing office for the twenty-seventh fiscal year. To report to board of examiners — Account and report to be voucher. Sec. 3. The superintendent must report to the board of examiners, at each meeting of the board, the name of each employee in his office and the amount due him for labor; and if the board audit the same the controller must draw a warrant in favor of such employee for the amount due, and the audited account and report of the superintendent shall be the voucher to the controller for all the warrants drawn therefor. When to advance money out of public funds. Sec 4. The state treasurer is hereby authorized, when the general fund is exhausted, to advance the money on the controller's warrants drawn for wages and salaries of the employees in the state printing office out of any public funds in the treasury, which warrants shall be his vouchers until there is money in the general fund to cancel them; provided, that this section shall not apply to any fund against which there are any warrants then due or to become due, or so as to keep claimants out of their just demands. Sec 5. This act to take effect immediately. An Act to appropriate moneys for the i^urpose of insuring the state printing office. Approved March 17, 1876; 1875-6, 327. [This act appropriated eleven hundred dollars for the j^urpose of insuring the building known as the governor's mansion, now used as the state printing office, and the materials therein.] 135 548-554 POLITICAL CODE. ^ ARTICLE XIII. STATE GEOLOGIST. 548. General duties of. Sec. 548. It is the duty of the state geologist, with the aid of such assistants as he may appoint, to continue and with all reasonable diligence to complete the geological sun-ey of this state. He must also prepare a report of the survey and superintend the publication thereof in the form of a geological, botanical, zoological, and physiographical history of the state, with full and scientific descriptions of its rocks, fossils, soils, minerals, mines, climates and physical geography, together with suitable and accurate geological and topo- graphical maps and diagrams of the same. 549. Report to governor. ' Sec. 549. He must, as near as may be at the beginning of each session of the legislature, present to the governor, who must lay the same before the legisla- ture, a report of progress in w^hich the operations of the geological survey during the interval since his last preceding report must be set forth, and its most important results made public. 550. Specimens to he delivered to university. Sec. 550. The geological and other S2:>ecimens collected by the state geologi- cal survey must, excepting such as may be required by the state geologist to aid in the prei^aration of his report, be delivered over to the regents of the state university, to be by them deposited in the cabinet of the same as the property of the university. 551. Salary of geologist. Sec 551. The annual salary of the state geologist is six thousand dollars, payable monthly out of any ai^propriations which may be made by the legisla- ture for the continuation of the work of the survey. 552. Compensation of assistants. Sec. 552. His assistants receive such compensation as he may determine, payable in the same manner out of the same fund. 553. Board of examiners to audit accounts. Sec 553. The accounts of the state geologist, including salaries and all other expenses of the survey, must be audited by the board of examiners, and, if found coiTcet, must be paid out of the state treasury in such manner as may be provided by law. 554. Reports and maps to he sold, etc. Sec. 554. The volumes and maps of the rei^ort must be sold upon such terms as the governor deems to be most advantageous to the state, and any moneys derived from such sales must be applied to the completion of the unfinished publications of the sun^ey, and the surplus, if any, must be paid into the common school fund of the state. An Act to authorize the distribution of the reports of the state geological survey. Approved February 2, 1872; 1871-2, 55. Reports for foreign nations. Section 1. On the application of any consul residing in the city of San Fran- cisco, and representing an European government, to the governor of the State of California, requesting a set of the reports of the state geological survey, to be deposited in some well-known and established scientific or literary institu- tion under the control of the government of which he is the accredited rej)re- sentative, an order may issue from the governor to the secretary of state or the state geologist, as the case may be, directing them to fui-nish one such set 136 JPUBLIC OFFICEKS. 554 of reports only to each nation having a consul residing in San Francisco ; pro- vided further, that the state superintendent of public instruction shall be furnished, on demand on the secretary of state and the state geologist, with one set for the state normal school, two sets for the state university, and two sets for the state library. Delivery of reports. Sec. 2. The secretary of state or the state geologist, on the presentation of such order, shall deliver to the party therein named such set or parts of set of the rejDorts of the state geological survey as may be designated, taking his receii:>t therefor. They shall annually, on the first day of September of each year, rej^ort t-o the governor the number of volumes so issued, at whose request, and to what institution presented. Sec. 3. This act shall take effect immediately. • An Act suiDplementary to the above act. Approved April 1, 1872; 1871-2, 924. Distribution in United States. Section 1. Of each of the volumes and maps of the state geological survey already published, or which may be hereafter published, one hundred coj^ies shall be deposited at the office of the secretary of state by the state geologist, subject to the order of the governor, for gi'atuitous distribution to the various state and territorial libraries, to j^ublic libraries, and to the libraries of uni- versities, colleges, and learned societies in the United States. Distribution in foreign countries. Sec 2. One hundred copies of the same may be distributed by the state geologist to public libraries and learned institutions in foreign countries, to the ofiicers of other geological sui-veys, and to joersons who may have rendered sj)ecial services to the geological survey of California. County Clerks. Sec 3. On application by the county clerks of the respective counties to the \8tate geologist, one coj)y of each of same shall be given to each county in the State of California, to be deposited and kept with the county records, and to be accessible at all reasonable hours for inspection by the general public, the county clerk being held responsible for the safe keeping of the same. Record of distribution. &EC. 4. The secretaiy of state and the state geologist shall each keep a record of the volumes and maps thus distributed, specifying the names of the institutions or individuals to whom the same are given, and the state geologist shall biennially communicate such record as kept by him to the office of the secretai-y of state, where a complete record of the distribution herein provided for shall be preserved. Sec. 5. No j)erson or institution shall receive more than one copy of each vol- ume or map, under the provisions of this act. Sec. 6. This act shall take effect immediately. An Act to continue the geological survey of the State of California. Approved March 13, 1872; 1871-2, 355. Completion of survey. Section 1. It shall be the duty of the state geologist to proceed and with all reasonable diligence complete the geological survey of this state, and the publi- cation of the results thereof. Appropj'iation. Sec 2. The sum of two thousand dollars per month, payable monthly for the 137 554-561 POLITICAL CODE., l^eriod of two years froin and after the twenty-fifth day of March, a. d. eighteen hundred and seventy-two, is hereby appropriated out of any money in the treas- tuy not othenvise ai^propriated, to joay the exjjenses of said survey and publica- tion, and the controller is hereby directed to draw his warrants upon the treasurer and in favor of the state geologist therefor. Sec. 3. This act shall take efl'ect immediately. [A concurrent resolution was adopted March 25, 1874; 1873-4, 992, requesting the late state geologist to return to the state all si)eeimens collected b}^ him as such geologist, and that they be jjlaced in the possession of the state university for the use and benefit of the university.] An Act to provide for the i3reservation of the material of the geological survey of California. Approved March 27, 1874; 1873-4, 094. State geologist. Section 1. It shall be the dut}' of the state geologist to deliver to the presi- dent of the university of California, at Berkeley, in this state, all instruments, accoutrements, furniture, property, maps, books, drawings, manuscripts, notes, engra\dngs, lithographic stones, wood-cuts, field notes and other material of every description and nature belonging or ajDpertaining to the geological survey of California; such surrender and delivery to be made without delay. Jlegenfs. Sec 2. The regents of the university of California shall safely keep and pre- serve, at the said university, all the proijerty and material referred to in section one of this act, until such time as the legislature may direct otherwise. Appi'ojyriation. Sec. 3. The sum of five thousand dollars is hereby approjDriated out of any money in the general fund not othenvise ai:)propriated, to pay the necessary cost of arranging, packing, transporting and delivering the said jn-operty and mate- rial; and the controller shall draw his warrant or warrants for such purpose, not to exceed said sum of five thousand dollars, when directed to do so by the state board of examiners, and the treasm-er shall pay the same. Bejjorts. Sec. 4. The regents of said imiversity shall keep on hand and ofi'er for sale all volumes of reports and maps published b}' said geological survey; they may also, as soon as the present sujjply of reports and maps is exhausted, cause any jiortion of the same to be rej^ublished and sold at the prices now jn-ovided or that may hereafter be provided by law; provided, that said republication shall be done without cost to the state; provided further, that the proceeds of tlu sale of all such maps and reports, over and above the cost of republication, shall be paid in to the state treasurer and by him credited to the school fund of tha state. Sec 5. This act shall take efiect immediately. ARTICLE XIV. SEALERS OF WEIGHTS AND MEASURES. 561. General duties of. Sec. 501. The state sealer of weights and measures has the general sujoer- vision of the weights and measures of the state. He must take charge of the standards, and see that they are kept in, and in no case removed from, a fire- proof vault in his office, except for the purpose of comi)aring and copying. He must correct the standards of the cities and counties, provide them with the necessaiy standards, balances, and other means of adjustment, and as often as once in ten years comijare the same with those in his possession. 138 PUBLIC OFFICERS. 5G2-580 562. County clerks ex officio sealeis. Sec. 5G2. The county clerks are ex officio county sealers of weights and measures for their respective counties. 563. Duties of county sealers. Sec. 5G3, The county sealers must keep in their offices the standards of ■weights and measures for their respective counties. 564. Standards for county sealers. Sec. 564. Copies of the original standards, to be made of such material as the state sealer directs, must be deposited by him in the office of the county sealers of the several counties of this state at the expense of the counties, which are severally responsible for the preservation of the copies respectively delivered to them. 565. Standards to be marked. Sec. 565. The state sealer must cause to be impressed on each of the copies of such original standards the letter " C," and such other device as he may direct for the particular county, which device must be recorded in the state sealer's office, and a copy thereof delivered to the respective county sealers. 566. Standards, county sealers to compare, etc. Sec. 566. The county sealers must compare all weights and measures which are brought to them for that purpose with the copies of standards in their possession, and when the same are found or made to conform to the legal standards, the officer comparing them must seal and mark them as correct. 567. Fees. Sec. 567. Each county sealer may receive for his services the following fees: For sealing and marking every beam, seventy -five cents; for sealing and mark- ing measures of extension, at the rate of forty cents per yard, not to exceed one dollar and a half for any one measure; for sealing and marking every weight, twenty-five cents; for sealing and marking liquid and dry measures, if the same are of the capacity of a gallon or more, forty cents; if less than a gallon, twenty cents. ARTICLE XV. INSPECTOB OF GAS METERS. 577. To provide testing apparatus. Sec. 577. The inspector of gas meters must provide and keep suitable appa- ratus for testing the accuracy of gas meters. 578. Seal. Sec. 578. He must j)rovide a suitable seal with which to seal meters inspected by him and found to be correct, and must file a copy of such seal in the office of the secretary of state. 579. May appoint deputies. Sec. 579. He may aj)point dejraties. 580. Must inspect meters, ivhen. Sec. 580. He must, whenever requested, inspect and test the accuracy of any gas meters used or intended to be used for measuring the quantity of gas fur- nished by any gas company in this state, and when he finds the same correct, seal the same with his seal. No meter shall be accounted correct which regis- ters an amount more than three per cent, greater or less than the amount actually jiassed through it, but the inspector may seal meters registering more than three per cent, against the gas company, when requested by the company to do so. Reasonable notice shall be given to the aj)plicant, and also the individual 139 580-595 POLITICAL CODE. or gas company furuisbing or proposing to fnrnisli the gas, of the time and place of the inspection of the meter, and opportunity afforded them, their ser- vants or agents, to be present at and witness the inspection. [^Ameyidmenf , ap- jii'oved April 1, 1876; Amendments 1875-G, 22; took effect immediatehj^^'' 581. Rein^peciion. Sec. 581. Any individual, or gas company, placing or using for measuring gas a meter which has not been inspected by the state inspector, and does not bear his seal, shall be guilty of a misdemeanor, nor shall any charge for gas sup- l)lied through such a meter be legally collectible; nor shall the refusal of a consumer to pay the same give authority to the company to refuse to supply him with gas. When a meter, properly sealed, is once placed for the use of a con- sumer, an inspection may be had as often as the consumer may request the same in writing, he to i:)ay the fee therefor whenever the meter is found not to register too fast. When the meter is found to register too fast, the gas company must pay the fee, together with the cost of removing and resetting the meter, and the inspector shall remove the seal if there be one upon it; provided, that when any meter found incorrect shall be corrected, it shall be sealed by the inspector without additional charge, if iDresented to him for reijispection within one month. [Amendment, approved April 1, 1870; Amendments 1875-G, 22; tooh effect immediatelij}^^ 582. Compensation. Sec. 582. He may collect a fee of two dollars and fifty cents for each meter tested. 583. Residence. Sec. 583. He must reside in the city of San Francisco. 584. Official bond. Sec, 58i. He must execute an official bond in the sum of five thousand dollars. AKTICLE XVI. INSUKAXCE COMMISSIONER. 594. Eligibility. Sec. 594. No person is eligible to the office of insurance commissioner or deputy who is an officer, agent, or emplo^'ee of an insurance company, 595. General duties of insurance commissioner. Sec 595. The insurance commissioner must receive all bonds and securities of persons engaged in the transaction of insurance business in this state, and file and safely keep the same in his office, or deposit them as provided in this arti- cle. He must examine and inspect the financial condition of all persons en- gaged, or who desire to engage, in the business of insurance; issue a certificate of authority to transact insurance business in this state to any persons in a solvent condition who have full^^ complied with the laws of this state; determine the sufficiency and validity of all bonds, and other securities, required to be given by persons engaged or to be engaged in insurance business, and cause the same to be renewed in case of the insufficiency or invalidity thereof; and perform all other duties imposed upon him by the laws regulating the business of insurance (a) Original section: (6) Original section: Skc. 580. He inuBt, whenever requefited, inspect and Skc. 581. When a meter, properly sealed, is once test the accuracy of any giis meters used or intended to placed for the use of a consumer, an inspection maybe be used for measuring the quantity of gas furnished had as often as the consumer may reiiuest tlic same in by any gas company in this state, and when he finds writing; he to pay tlie fee therelor whrniver and as the same to be correct, or when he has corrected the often as the meteris found to register correctly. When same if found incorrect, seal the same with his seal. proved to be in 611. Statement, when to he made. Sec. 611. The statement mentioned in the pi^eceding section must exhibit the condition and affairs of every such corporation, person, firm, or individual, on the thirty-first day of December then next preceding, and must be jiublished in a daily newspaper in the city where the principal office is located for the peiiod of one week; and must be filed with the insurance commissioner, as follows: 1. If made by a person residing in, or by a company organized under the laws of this state, on or before the first day of February of each year; 2. If made by a jDerson resident of, or by a company organized under the laws of any other state or temtory or district of the United States, on or be- fore the first day of March of each year. 3. If made by a person resident of, or by a company organized under the laws of any coujitry foreign to the United States, on or before the first day of April of each year. [Amendment, approved March 30, 1874; Amendments 1873-4, 10; took effect July 6, 1874.'-^' (a) The original section had the following fiirther 1. By persons transacting the business of fire, ma- clause at the end of the second subdivision, '• or by the rlne, or inland insurance: oath of a duly authorized agent thereof residing in this (a) If made by a person residing in or by a company state." organized imder the laws of this state, on or before (a) Original section: the first day of February of each year; Sec. Gil. The statement mentioned in the preceding (b) If made by a person resident of or by a company section must exhibit the condition and affairs of every organized under the laws of any other state or territory such corporation, person, firm or individual, on the or district of the United States, on or before the first thirty-first day of December then next jireceding, and day of June of each year; must be published in a daily newspaper in the city (c) If made by a person resident of or by a company where the principal office is located, for the period of organized under the laws of any country foreign to the one week ; and must be filed with the insurance com- missioner, as follows: 10 145 612 POLITICAL CODE. 612. Statement hy fire, marine, and inland infturance companies. Sec. 612. Such statemeut, if made by jSre, iiiariue, and inland insurance companies, must show: Fird. The amount of the capital stock of the company. Second. The property or assets held by the company, specifying: 1. The value of the real estate held by such company; 2. The amount of cash on hand and deposited in banks to the credit of the company, specifying the same; 3. The amount of cash in the hands of agents and in course of transmission; 4. The amount of loans secured by bonds and mortgages constituting the first loan on real estate on which there is less than one 3'ear's interest due or owing; 5. The amount of loans on which interest has not been paid Avithin one year previous to statement; 6. The amount due the company on which judgments have been obtained; 7. The amount of stocks of this state, of the United States, of any incorpo- rated city of this state, and of any other stocks owned by the company, speci- fying the amount, nu)uber of shares, and par and market value of each kind of stock; 8. The amount of stocks held as collateral security for loans, witb the amount loaned on each kind of stock, its jDar value and market value; 9. The amount of interest due and unpaid; 10. The amount of all other loans made by the comjDany, specifying the same; 11. The amount of premium notes on hand on which policies are issued; 12. All other property belonging to the company, specifying the same. Third. The liabilities of such company, specifying: 1. The amount of losses due and unpaid; 2. The amount of claims for losses resisted by the company; 3. The amount of losses in process of adjustment or in suspense, including all reported or supposed losses; 4. The amount of dividends declared, due, and remaining unpaid; 5. The amount of dividends declared, but not due; 6. The amount of money borrowed and security given for the payment thereof; 7. Gross premiums (without any deduction) received and receivable upon all unexpired fire risks running one year or less from date of jjolicy — reinsurance thereon at fifty per cent. ; 8. Gross premiums (without any deductions) received and receivable uj^on all unexpired fire risks ninning more than one year from date of policy— rein- surance thereon pro rata; 9. Gross premiums (without any deductions) received and receivable upon all unexpired marine and inland navigation risks, except time risks — reinsurance thereon at one hundred j^er cent. ; 10. Gross i)remiums (without any deductions) received and receivable on marine time risks — reinsurance thereon at fifty per cent. ; 11. Amount reclaimable by the insured on perpetual fire insurance policies, being ninety-five per cent, of the premium or dej^osit received; 12. Eeinsurance fund and all other liabilities, except caj^ital, under the life insurance or any other special department; United States, on or before the first duy of .June of organized under the laws of any other state or terri- each year. tory or diBtrict of the TJnited States, on or before the 2. By iiersons tninsacting the ImsinesB of insurance, first day of April of each year; other than fire, nmrine. or iulnnd: (c) If iiiaiU- by a xxrson resident of or by a company (a) If made by a person residing in or by a comiJany organized under the laws of any country foreign to the organized under the laws of this state, on or before United States, on or before the first day of June of the first day of March of each year; each year. ()■! If made by a person resident of or by a couiiJimy 146 PUBLIC OFFICERS. 612-613 13. Unused balances of bills and notes taken in advance for premiums on open marine and inland policies, or otherwise, returnable on settlement; 14. Principal unpaid on scrip or certificates of profits which liave been author- ized or ordered to be redeemed; 15. Amount of all other liabilities of the company, specifying the same. Fourth. The income of the comj)any during the preceding year, specifying: 1. The amount of cash premiums received; 2. The amount of notes received for j)remiums; 3. The amount of interest money received, specifying the same; 4. The amount of income received from all other sources, sjjecif^'ing the same. Fifth. The expenditures during the preceding year, specifying: 1. The amount of losses paid; 2. The amount of dividends paid; 3. The amount of expenses paid, including commissions and fees to agents and officers of the company; 4. The amount paid for taxes; 5. The amount of all other payments and expenditures. Sixth. 1, The amount of risks written during the year; 2. The amount of risks exj^ired during the year; 3. The amount of risks written during the year in the State of California; 4 The amount of premiums thereon. 613. Statement by life, health and accident companies. Sec. 613. Such statement, if made by life, health, and accident companies, must show: Fii^st. The amount of the capital stock of the company. Second. The property or assets held by the company, specifying: 1. The value of the real estate held by the company; 2. The amount of cash on hand and deposited in banks to the credit of the company, specifying the same; 3. The amount of loans secured by bond and mortgage on real estate, speci- fying the same; 4. Amount of loans secured by pledge of bonds, stocks, or other marketable securities as collateral, sj)ecifying the same; 5. Cash market value of all stocks and bonds owned by the company, sj^eci- fying the same; 6. Interest due the company and unpaid; 7. Interest accrued but not due; 8. Premium notes and loans in any form taken in jDa^anent of premiums on policies now in foi'ce; 9. Gross amount of premiums in process of collection and transmission on policies in force; 10. Gross amount of deferred premiums; 11. All other assets, specifying the same. TJiird — Liabilities. 1. Claims for death losses and matured endowments, due and unpaid; 2. Claims for death losses and matured endowments in process of adjust- ment or adjusted and not due; 3. Claims resisted by the companj^; 4. Amounts due and unpaid on annuity claims; 5. Trust fund, on deposit, or net present value of all the outstanding jioli- cies, computed according to the American experience tables of mortality, with four and one half per cent, interest; 147 G13-G15 POLITICAL CODE. 6. Additional trust fund on deposit, or net present value of extra and special risks, including those on impaired lives; 7. Amount of all unpaid dividends of surplus percentages, bonuses, and other description of profits to policy-holders, and interest thereon; 8. Amount of any other liability to policy-holders or annuitants not included above ; 9. Amount of dividends unpaid to stockholders; 10. Amount of national, state, and other taxes due; 11. All other liabilities, specifying the same. Fourth — Income. 1. Cash received for premiums on new policies during the year; 2. Cash received for renewal of premiums during the year; 3. Cash received for purchase of annuities; 4. Cash received for all other premiums; 5. Cash received for interest on loans, specifying the same; 6. Rents received; 7. Cash received from all other sources, specifying the same; 8. Gross amount of notes taken on account of new premiums; 9. Gross amount of notes taken on account of renewal premiums. Fifth — Expenditures. 1. Cash paid for losses; 2. Cash j)aid to annuitants; 3. Cash paid for lapsed, surrendered, and purchased policies; 4. Cash paid for dividends to policy-holders. 5. Cash paid for dividends to stockholders; 6. Cash paid for reinsurances; 7. Commission paid to agents; 8. Salaries and other compensation of officers and employees, excejDt agents and medical examiners; 9. Medical examiners' fees and salaries; 10. Cash paid for taxes; 11. Cash paid for rents; 12. Cash paid for commuting commissions; 13. All other cash payments. Sixth. Balance sheet of jDremium note account. Seventh. Balance sheet of all the business of the company. Eighth. 1. Total amount of insurance effected during the year on new jDolicies; 2. Total amount of insurance effected during the year in the State of Cali- fornia; 3. Premiums received during the year on risks written in the State of Cali- fornia. 614. Stock notes, hoxo computed. Sec. G14. Mutual companies formed, existing, and doing business under an act entitled "An Act to provide for the incorporation of mutual insurance com- panies," passed April twenty-sixth, eighteen hundred and fifty-one, may report their aj^proved stock notes as capital j^aid up, and such notes for all purposes must be deemed part of the paid-uj) capital stock of such corporation. 615. To furnish blanks. Sec. 015. The insurance commissioner must cause to be prepared and furnish to each person and to each of the companies incorporated in this state, and to the attorney of each of the companies incor])orated or chartered by other states and foreign governments, priuted forms oi the statements herein required; and he may make such changes from time to time in the form of the same as seems to him best adapted to elicit from the companies a true exhibit of their condition in 148 PUBLIC OFFICERS. G15-G17 respect to the several points hereinbefore enumerated. The same forms must be addressed to all jjersous and companies engaged in the same kind of busi- ness. 616. Agent upon ichom proccH^ may he served. Sec. 616. The insurance commissioner must require, as a condition precedent to the transaction of insurance business in this state by any foreign corporation or comj)any, that such corporation or company must file in his office the name of an agent, and his jjlace of residence in this state, on whom summons and other process may be served in all actions or other legal proceedings against such corporation or company. All process so served gives jurisdiction over the person of such corporation or company. The agent so appointed and desig- nated shall be deemed in law a general agent, and must be the principal agent or chief manager of the business of such corporation or company' in this state. Any act, statement, representation, or agreement, done or made by an agent so aj^pointed and designated, which in any manner j)ertains to the business of such corporation or company, shall be deemed the act, statement, representation, or agreement of the principal, and shall have the same force and efifect as if done or made hj the principal. Any such foreign corporation or comjaany shall, as a fui*ther condition precedent to the transaction of insurance business in this state, and in consideration of the privilege to transact such insurance business in this state, make and file with the insurance commissioner an agreement or stipulation, executed by the proper authorities of such corporation or company, in form and substance as follows: "The (giving name of corporation or com- pany), does hereby stipulate and agree, that in consideration of the permission granted by the State of California to it, to transact insurance business in that state, that in all litigation between (giving name of cori^oration or compan}^), and any citizen of the State of California, the courts of said state shall have and maintain exclusive jurisdiction of such, litigation. And it is further agreed that no action hereafter commenced in any district court of said State of Cali- fornia against (insert name), shall be removed or transferred therefrom to the United States circuit court." If in any action hereafter commenced in any dis- trict court of this state, by a citizen thereof, against a foreign corporation or company doing insurance business in said state, such corporation or company shall transfer, or cause to be transferred, such action to the United States cir- cuit court, the right of such corporation or company to transact insurance busi- ness in said state shall thereupon and thereby cease and determine; and the insurance commissioner shall immediately revoke the certificate of such cor- poration or company, authorizing it to do business in said State of California. [Amendment, approved March 28, 1874; Amendments 1873-4, 63; took effect from passage; repealed inconsistent acts}^^ 617. Duties of commissioner ivhen companies fail to make statement. Sec. 617. The commissioner must collect the sum of one thousand dollars from any corporation or company engaged in the business of insurance, for a failure to make and deposit, in his office, within ninet}^ days after being thereto requested by said commissioner, the statements and stipulations provided for in the eighth preceding section and the last preceding section; and an addi- tional penalty of two thousand dollars for each and eveiy month thereafter that such corporation or comj^any contiiuies to transact the business of insurance, until such certificate, statement, and stipulations are filed; and for that purpose suit may be instituted in the name of the people of the State of California, in any court of competent jurisdiction. The insurance commissioner shall im- (a) The original section consisted only of the first two sentences of the above amended section, omitting the words " or company." 149 G17-G21 POLITICAL CODE, mediately after the passage of this act give due notice of its provisions to all foreign insurance cori:)orations or conijianies doing or proposing to do business in this state. [Amendmenf , approved 3larch 28, 1874; Amendments 1873-4, 65; iook effect from passage ; repealed inconsistent acts}^'' 618. Deposits and dividends. Sec. G18. Whenever the laws of any state of the United States require any life insurance company incorporated by or organized under the laws of this state to deposit with some officer of this state securities in trust for or for the benefit of the policy-holders of such corjioration as a prerequisite to transacting business in such other state, the commissioner of this state must receive from such life insurance corporation securities of the amount rec[uired b}^ the laws of such other state, on deposit and in trust for the policy-holders of such corpora- tion, the value of which must be ec|ual to the vakie of interest-bearing stocks, bonds, or other securities of the United States. He must, upon the receipt of the securities, forthwith make a special deposit in the state treasury of the same, in packages marked with the name of the corporation from whom received, where they must remain as security for policy-holders in the corporation to which they respectively belong; but so long as an}' corporation so depositing continues solvent, he must permit such corporation to collect the interest or dividends on its securities so deposited, and from time to time to withdraw any such securities on depositing other securities in the stead of those to be with- drawn, such new securities to be of the same value mentioned in this chapter; but such securities must not be withdrawn from the state treasury unless upon the written order of the acting president and secretary of the corporation mak- ing the deposits, which order must be indorsed by the commissioner, or uj^on the order and authority of some court of competent jurisdiction. 619. Deposits, receipts for. Sec. G19. Whenever an}' life insurance corporation, organized under the laws of this state, has deposited with the commissioner the requisite securities, in conformity with the laws of the state in which such corporation is desirous of transacting its business, he must issue to such corporation a certificate, under his official seal, of such deposit, for each state requiring the same, which must state the items and amount of securities thus deposited, and that they are of the market value represented therein; but no securities must be estimated above the par value of the same. 620. Deposits returned, lohen. Sec. G20. Whenever any life insurance corporation has so deposited its secur- ities, and has paid, canceled, or reinsured all its unexpired policies, and all its liabilities under such policies are extinguished or assumed by other responsible coiporations having a siujilar deposit with the commissioner, then if, on ap- plication of such corporation, verified by the oath of its president and secretaiy, and from an examination of the books of the corporation and of its officers under oath, the insurance commissioner is satisfied that all of its policies are so paid, canceled, extinguished, or reinsured, he must deliver up to the corjiora- tion the securities deposited. 621. Examination (f securities. Sec G21. The commissioner must make an annual examination of the securi- ties received by him from each life insurance corporation, and if it appear at (a) Original Bection: niontli thorcaitcr tliiit such person or corjioratiou con- Skc. 017. The coniiniSRloner must collci-t tlic sum of tinucs to transact the l)usiu(ss of insurance until such five huudrcd dollars from any person or corporation certificate and statement is filed, and for that purpose engaged in tin; Inisiness of insurance for a failure to suits may be instituted in the name of the peoi)le of luake and deposit in his office the statements provided the State of California iu any court of comi)etent juris- for in the eighth preceding section, and an additional diction, penalty of one tliousaud dollars for each and every 150 PUBLIC OFFICERS. 621-G23 any time that the securities deposited by auy corporation amount to less than the sum required for the purposes for which the deposit Avas made, he must notify tlie corporation thereof; and unless the deficiency is made up within thirt}' days after notice, the commissioner must countermand all the certificates he may have issued to the corporation under this chapter, and give notice thereof to the officers of the several states to whom the certificate may have been transmitted; and he must also publish the notice for three weeks succes- sively in one daily newspaper printed in the city of Sacramento, and one daily newspaper printed in the city of San Francisco, at the expense of the corpora- tion, collected by assessment. 622. Retaliatory clause. Sec. 622. Whenever the laws of any state or count[r]y require of insurance companies, incorporated under the laws of this state, and having agencies in sucli other state or couut[r]y, or of the agents thereof, any further or greater license, fees, charges, impositions, taxes, deposit of securities, statements, pub- lications, or certificates of authority, or inflict any greater iines or penalties upon such corj^orations or agents than are required from similar companies or agents, belonging to such state or count[r]y respectively, then and in every such case, from every company, person, or corporation of such state or eount[r]y, which has or is about to establish agencies in this state, the commissioner must, before it continues or commences to do business in this state, collect the same license, fees, charges, impositions, and taxes, " as are imposed by such state upon agents, companies, corporations, or persons of this state, doing business in such state in excess of the license, fees, charges, imiDOsitions, and taxes, upon agents, companies, corporations, or persons of that state," and require the same statements, publications, certificates of authority, and the same deposit of securities as are required by the laws of such state or country, of companies, persons, or corporations, and agents of this state, doing business in such other state or country. And the same fines and penalties must be inflicted upon companies, persons or corporations, of such other state or country, and their agents, as are inflicted by the laws of such state or country upon companies, persons, or corporations of this state, and their agents, in excess of such fines and penalties inflicted upon companies, persons, or corporations belonging to such state or country, resj)ectively; which may be recovered by the insurance commissioner in the manner provided in section 598 of this code. [Amend- ment, apj^roved March 30, 1874; Amendments 1873-4, 11; took efect July G, 1874.'^' 623. Bonds from foreign corporations. Sec. 623. The commissioner must require every company, association or indi- vidual, not incorporated under the laws of this state, and projjosing to transact insurance business by agent or agents in this state, before commencing such business to file iu his office a bond, to be signed by the person or firm, officer or agent, as princij^al, with two sureties, to be approved by the commissioner, in the j)enal sum of two thousand dollars for each insurance company, association, (a) Original section: agencies in this state, the commissioner must, before Sec. 622. Whenever the laws of any state of the it continues or commences to do busincsK in this state. United States require of insurance companies incor- collect the same license, fees, charges, impot-iticius, and porated under the laws of this state and having agen- taxes, and require the same statements, publiciitions, cies in such other state, or of the agents thereof, any certificates of authority, and the same depo.sit of secu- turther or greater license, fees, charges, impositions, rities as are required by the laws of such state of simi- taxes, deposit of securities, statements, publications, lar companies, persons, or corporations, and agents of or certificates of authority, or inflict any greater fines this state doing business iu such other state; and the or penalties upon such corporations or agents than are same fines and penalties must be inflicted upon corn- required from similar companies or agents of other panies, persons, or corporations of such other states, states doing business in this state, then and in eveiy and their agents, as are inflicted by such states upon such case, from every company, person, or corporation companies, persons, or corporations of this state, and of such other state which has or is about to establish their agents, under the laws of such other states. 151 G23-630 POLITICAL CODE. firm or individual for whose account it is proj^osed to collect premiums of insur- ance in this state, the conditions of such bonds to be as follows: 1. That the person or firm, agent or officer named therein, acting on behalf of the company, association, firm or individual named therein, will pay to the treasurer of the county, or city and county, in which the principal office of the agency is located, such sum per quarter, c^uarterly in advance, for a license to transact an insurance business, or such other license as may be imposed by law, so long as the agency remains in the hands of the person or firm, officer or agent named as principal in the bond; 2. That the 2:)erson or firm, officer or agent will pay to the state all stamp or other duties on the gross amounts insured by them in the manner and at the time prescribed by law, inclusive of renewals on existing policies; 3. That the joersou, firm, agent or cori^oration named therein will conform to all the provisions of the revenue and other laws made to govern them. 624. Separate bonds, when. Sec. 624. Whenever the same person, firm, ofiicer or agent desires to collect premiums of insurance for more than one company, association or individual, not incorporated under the laws of this state, the commissioner must require a separate bond, as provided in the preceding section, for each company or asso- ciation so represented by such person, firm, officer or agent. 625. Commissioner to furnish assessor with certain information. Sec 625. The commissioner must, before the commencement of each fiscal year as fixed in the revenue laws, furnish the assessor of the county in which the principal office of any person or corporation doing the business of insurance is situated, all the data concerning premiums collected by, and all other necessary information in relation to the business of such person or corporation as will assist the assessor in the performance of his duties. 626. Securities. Sec. 626. The commissioner must require from every person, before and after engaging in the business of insurance, a full comi:>liance with all the provisions of Title II, Part IV, Division I of the Civil Code applicable thereto; and every person neglecting to comply with such requirements is subject to the fines and penalties therein prescribed. [See post, 5414.] 627. Statements to be based on gold coin values. Sec. 627. All statements, estimates, percentages, payments, and calculations required by this chapter to be made, either by the commissioner or persons en- gaged in the business of fire or marine insurance, must be in gold coin of the United States. 628. Salary. Sec 628. The annual salary of the insurance commissioner is three thousand dollars. 629. Salary of dqmiy. Sec 629. The annual salary of the deputy of the commissioner of insurance is eighteen hundred dollars. 630. Contingent expenses. Sec 630. The commissioner may procure rooms for his office, at a rent not to exceed seventy-five dollars per month, and may provide a suitable safe and furniture therefor; he may also provide stationery, fuel, printing, and other conveniences necessaiy for the transaction of the business of his office. All expenditures authorized in this section must be audited by the board of exam- iners and paid in the same manner as the salary ^of the commissioner. 152 PUBLIC OFFICEKS. 631-643 631. Location of office. Sec. G31. The commissioner must keep his office in the city of San Fran- cisco. 632. Official bond. Sec. C32. The commissioner must execute an official bond in the sum of ten thousand dollars. 633. Conditions precedent to rigid to act as agent or solicitor. Sec. 633. No jierson shall, in this state, act as the agent or solicitor of any life insurance company doing business in this state, until he has produced to the commissioner and filed with him, a duplicate power of attorney from the company, or its authorized agent, authorizing him to act as such agent or solicitor. Upon filing such power, the commissioner shall issue a license to him to act as such agent or solicitor for such company, if such company has received a certificate of authority from such commissioner to do business in this state; provided, that if such agent or solicitor shall, within the twelve months next preceding, have been in the employ of any other company, or its authorized agent, as such agent or solicitor, he must produce to the commissioner written evidence from such employer that all moneys he may have collected for such company or agent have been paid over to said company or agent. Such license shall continue in force for twelve months from the date thereof, but may be and shall be sooner revoked upon application of the company or its authorized agent. Such license may be renewed from time to time, for an additional period of twelve months, on production by the holder to the commissioner of a certificate from the company that such person's authority as such agent or so- licitor continues. For each such license, or renewal thereof, the commissioner shall receive the sum of one dollar. The commissioner shall keep an alpha- betical list of the names of persons to whom such license shall be issued, with the date of the license and renewal, and the name of the company for which such person is working. If any person shall fraudulently assume to be an au- thorized agent or solicitor of any life insurance company, and thus jorocui-e, or attempt to procure, a^jplications, or receive or attempt to obtain money for pre- miums, he shall be guilty of a misdemeanor. If any person shall, under a false or fictitious name, procure, or attempt to procure, a license to act as agent or solicitor of any life insui-ance company, he shall be guilty of a misdemeanor. [New section, approved March 12, 1874; Amendments 1873-4, QQ; took effect six- tieth day after passage. ARTICLE XVIL FISH COMMISSIONEKS. 642. General duties of. Sec 642. It is the duty of the fish commissioners: 1. To establish fish breederies for stocking the waters of this state with foreign and native fish; 2. To purchase and import the spawn or ova of fish suitable for food; 3. To stock with such spawn the waters of this state; 4. To employ persons skilled in fish breeding to assist them in their duties; 5. To furnish jDlans for and direct and compel the construction and repair of fish ladders and ways upon dams and obstructions; 6. To report biennially to the governor a statement of all their transactions and disbursements. 643. No compensation. Sec. 643. The commissioners receive no compensation. 153 654-663 POLITICAL CODE. AETICLE XVIII. BOARD OF EXAJVnNERS, 654. Chairman. Sec. 654. The governor, and in his absence the secretary of state, is chairman of the board of examiners. 655. Meetings. Sec. 655. The semi-monthly meetings of the board must be hekl at the state capitol on the first and third Mondays in each month. 656. Record claims to be entered on viinufes. Sec. 656. The board must keep a record of all their proceedings, and any member may cause his dissent to the action of the majority upon any matter to be entered upon such record. And all claims must be entered on the minutes of the board, before the same shall be acted ujjon. [Amendment, ajyproved March 30, 1874; Amendments 1873-4, 67; took effect from jxissage.^^'' 657. Rides and regulations. , Sec. 657. The board may, in writing, establish rules and regulations not inconsistent with law for its government. 658. Witnesses. Sec. 658. The chairman may issue subj)oenas and compel the attendance of witnesses before the board or any member thereof in the same manner that any court in this state may; and whenever the testimony of any witness against a demand pending before them is material, the chairman must cause the attend- ance of the witness before the board, or a member thereof, to testify concerning the demand, and the board may make a reasonable allowance therefor, not exceeding the fees of witnesses in civil cases, which must be jjaid out of the ajjpropriation for the contingent expenses of the board, but in no instance can an allowance be made in favor of a witness who appeared in behalf of the claimant. 659. Depositions. Sec. 659. Each member of the board may take depositions to be used before it. 660. Presentation of and action on claims for which apiwo2:)riations have been made. Sec. 660. Any person having a claim against the state for which an appro- priation has been made, may present the same to the board in the form of an account or j^etition, and the clerk of the board must date, number, and file such claim, and the board must allow or reject the same in the order of its presen- tation. The board may for cause postpone action ujion a claim for not exceeding one month. 661. Approval of claims. Sec. 661. If the board approve such claim they must indorse thereon, over their signatures, "Ajyproved for the sum of dollars," and transmit the same to the office of the controller of state; and the controller must draw his warrant for the amount so approved in favor of the claimant or his assigns in the order in which the same was ajyproved . 662. JJisapproval. Sec. 6(52. If the board disapprove such claim they must cause the same to be filed with the records of the board with a statement showing such disapproval, and the reasons therefor. 663. Same, as to claims provided for, but for which there is no appropriation. Sec. 663. If no approi)riation has been made for the payment of an}' claim presented to the board, the settlement of which is provided for by law, or if an (a) The original section did not contain the last sentence of the above amendment. 154 PUBLIC OFFICEKS. 6G3-672 approioriation made has been exhausted, the board must audit the same, and if they approve it, must transmit it to the legislature with a statement of their api)roval. 664. Same, as to unsettled claims. Sec. GG4. Any person having a claim against the state, the settlement of which is not otherwise provided for by law, must present the same to the board of examiners at least four months before the meeting of the legislature, accom- panied by a statement showing the facts constituting the claim, verified in the same manner as complaints in civil actions. 665. Time of meeting for action on claims referred to in last section. Sec. 665. On the first Monday of September preceding the meeting of each legislature, the board must hold a session at the state capitol for the purpose of examining the class of claims referred to in the preceding section, and may adjourn from time to time until their work is completed. Prior thereto they must cause a list and brief abstract of all claims filed with them to be made and published in some newspaper at Sacramento city for such time as they may prescribe. The list must be accompanied by a general notice of the order in which and of the time when the board will proceed to examine the claims. 666. Proof and examination of such claims. Sec. 666. The board must, at the time designated, proceed to examine and adjust all such claims. They may hear evidence in support of or against them, and report to the legislature such facts and recommendations concerning them as they may think proper. In making their recommendations they may state and use any official or i^ersonal knowledge which any member of the board may have touching such claims. 667. Report on such claims. Sec 667. The board must make up their report and recommendations at least thirty days before the meeting of the legislature. A brief abstract of their report, showing the claims rejected, and those, or the amounts thereof, allowed, must be published in a newspaper published at Sacramento city for such time as the board may prescribe before the meeting of the legislature. 668. Disqualifications. Sec 668. No member of the board must act upon any claim in which he is interested, or for expenditures incurred in his office, nor must he be present when the decision thereon is made. 669. Treasurer to act in place of disqualified members. Sec 669. When any member of the board is disqualified from acting upon any claim, the state treasurer must act in his stead. 670. Restrictions on power of hoard. Sec 670. The board must not entertain, for the second time, a demand against the state once rejected by it or by the legislature, unless such facts are presented to the board as in suits between individuals would furnish sufficient ground for granting a new trial, 671. Appeals. Sec 671. Any person interested, who is aggrieved by the disajoproval of a claim by the board, may appeal from the decision to the legislature of the state, by filing with the board a notice thereof, and upon the receipt of such notice the board must transmit the demand and all the papers accompanying the same, vvith a statement of the evidence taken before it, to the legislature. 672. Controller not to di'aio warrant for any claims not audited by examiners. Sec 672. The controller must not draw his warrant for any claim unless it has been approved by the board, and when, hereafter, the controller is directed 155 672-680 POLITICAL CODE. to draw bis warrant for any purpose, tliis direction must be construed as subject to the provisions of this section, unless the direction is accompanied by a special provision exempting it from its operation, 673. Certain claims exempted. Sec. 673. Claims upon the contingent fund of either house of the legislature, and for official salaries, are exempted from the operations of the j^ro visions of the jn-eceding twelve sections. 674. Board may prevent payynent of controller's xcarrants, ivhen. Sec. 674. Whenever the board has reason to believe that the controller has di'awn or is about to draw his warrant without authority of law, or for a larger amount than the state actually owes, the board must notify the treasurer of state not to i)ay the warrant so drawn or to be drawn ; and thereupon the treasurer is prohibited from paying the waiTant, whether already drawn or not, until he is otherwise directed by the legislature. 675. 3Iust examine books of controller and treasurer. Sec. 675. As often as it may deem proper the board must examine the books of the controller and treasurer, the accounts and vouchers in their offices, and count the money in the treasmy; and for that i:)urpose they may demand, and the controller and treasurer must furnish without delay, all information touching the books, papers, vouchers or matters pertaining to their offices. 676. Ahist count money in treasury. Sec. 676. The counting of the moneys in the state treasury must take place at least once a month, without the board or any member thereof giving the treasurer any previous notice of the day or hour of counting. The board may at any counting, place any sum in bags or boxes, and weigh each bag or box separately, and mark the same with the weight thereon plainly specified, and l^lace thereon a seal, to be kej^t by them, and may at subsequent countings count or reweigh each bag or box separately', and estimate the contents of such bags or boxes as part of the money counted by them without making a detailed count of its contents. 677. Must make affidavit thereof. Sec 677. Thej' must at least once in each month make and file in the office of the secretary of state, and publish in some newspaper in Sacramento city, an affidavit showing: 1. The amount of money that ought to be in the state treasury; 2. The amount and kind of money actually therein. 678. Controller and treasurer must permit examinalion and counting. Sec. 678. The controller and treasurer must jDermit the board of examiners to examine the books and papers in their respective offices; and the treasurer must permit the moneys in the treasury, without delay on any pretense what- ever, to be counted whenever the board may wish to make an examination or counting. 679. Prinlinc) expert. Sec 679. The board must appoint a printing expert, who must examine and report to the board all accounts for jn-inting presented b}' the state printer or any other person, specifying whether the work has been executed in a work- manlike manner or not, and the amount for which the same should be allowed. The rejiort is not conclusive on the board, but is in aid of the discharge of their duties. The expert must receive a salary of fifty dollars a month, payable on the last day of each month. 680. Conversion of school fund into bonds. Sec 680. Whenever and as often as there is in the state treasuiy the sum of 156 PUBLIC OFFICERS. 680-C85 ten thousand dollars, as proceeds of the sale of state school lands, the board must invest the same in civil funded bonds of this state, or in bonds of the United States, at the lowest price at which they may be offered by the holders thereof, and as prescribed in the succeeding section. 681. Advertisement. Sec. 681. The board must advertise for thirty days in one daily newspaper pub- lished in each of the cities of Sacramento and San Francisco for sealed j^roposals for the purchase of civil bonds or bonds of the United States. At the expiration of thirty days from the first publication of the advertisement the board must open the bids at the time and place specified in the advertisement therefor, in the presence of the treasurer and controller of state. They may accept or reject all bids at their pleasure; but if they accept any bids they must accept the bids ofi'ering" such bonds at the lowest price; but no bids must be considered unless accompanied by the bonds. 682. Application of bonds purchased . Sec. 682. The board must thereupon certify the accepted bids to the con- troller, who must draw his warrant in favor of the successful bidders for the amount respectively due, and the state treasurer must pay the same from the proceeds of the sale of school lands, and the board must deliver the bonds so l^urchased to the state treasurer, who must keep them as a special school fund deposit, the interest upon such bonds to be subject to such disposition as is provided in the title of this code relating to common schools. 683. Purchase of state bonds. Sec 683. At any sale of civil bonds by the state treasurer the board may become bidders and i:)urchase bonds with the funds at their disposal, and the appropriate transfer of funds must be made by the controller and treasurer on the books of their ofiices. 684. Salary of members. Sec 684. The annual salary of each member of the board, except the attor- ney-general, is one thousand dollars. The annual salary of the attorney-gen- eral for services performed under this ai^ticle is fifteen hundred dollai's. 685. Salary of clerk. Sec 685. The annual salary of the clei'k of the board is twelve hundred dollars. An Act prescribing certain duties to be performed by the state coutroller, state treasurer, and state board of examiners. Approved February 20, 1872; 1871-2, 118. Rep)orts of warrants drawn by controller. Section 1. The state controller shall furnish to the state treasurer, on the tenth, twentieth, and last days of each month, and when either of these days falls upon a day on which the state controller is not required to keep his ofiice open for the transaction of business, then upon the day immediately preceding the days herein mentioned, with a report of all warrants drawn by him upon the treasurer since the date of his last report. Such report shall show the number, date, and amount of each warrant, to whom issued, and the fund out of which it is payable. From the report so furnished by the controller, the state treasurer shall make a register of warrants, and shall pay all warrants in the order in which they are drawn by the controller. Report of warirmts paid by treasurer. Sec 2. Upon the last day of each month, except when such last day falls upon a day on which the state treasurer is not required by law to keep his office open for the transaction of business, then upon the day immediately pre- 157 085 POLITICAL CODE. ceding such last clay, the state treasurer shall furnish the state controller with a list of all warrants paid hy him since the date on which his last list was fur- nished. Such list shall contain the number, date, and amount of each warrant, and the fund out of which the same was paid. Adjustment of balances in treasury. Sec. 3. Immediately after the passage of this act, it shall he the duty of the state controller and state treasurer, under the supervision of the governor, to ascertain the numbers, dates, and amounts of the several warrants drawn by the controller, and then unpaid by the treasurer, and to adjust the balances in the several fiinds of the state treasurer upon the books of the controller and treasurer, in accordance with the sums found, to the credit of each on the books of the controller, and the warrants found to be outstanding and not joaid by the treasurer. Examiners to count money, etc. Sec. 4. "When the balances in the several funds of the state treasury shall be adjusted as provided for in the next preceding section, the state board of ex- aminers shall count the money in the state treasury, and compare the amount ■with the amount found to be in all the funds of the state treasury by the books of the state controller, and upon the first business day of each month thereafter the state controller shall furnish the state board of examiners with a statement of the amount of money in each fund of the state treasury, and the total amount as the same aj)pears upon the books of his office, together with a list of war- rants issued by him but not paid by the state treasurer, and for the payment of which there is money in the state treasury. Upon the receipt of such statement from the controller, the state board of examiners shall proceed to count the money in the state treasury, and compare the amount with the amount named in the statement of the controller. Cancellation of warrants uncalled for. Sec 5. Whenever any warrant issued by the state controller shall remain in his office uncalled for by the-owner thereof for the period of one year after such warrant has become payable, it shall be the duty of the controller and treasurer, in the presence of the state board of examiners, to cancel the same; and when- ever any warrant, delivered to the owner thereof by the controller, but not presented to the state treasurer for payment for a period of one year after such warrant has become payable, said warrant shall be deemed to be canceled, and the treasurer shall, in the presence of the controller and state board of ex- aminers, write the word "canceled" opposite the entry of such warrant in his registry of warrants provided for in the first section of this act. The word "canceled" shall also be written by the state controller opposite the entry in the warrant register in his office, of all warrants required to be canceled by this act. The amounts of all warrants canceled under the provisions of this act shall revert to the fund in the state treasury against which said warrants were drawn, and shall be entered upon the books of the controller to the credit of such fund, in the same manner as other moneys paid into the state treasury. JRegisier of canceled warrants — Reissue. Sec. G. The controller and treasurer shall each keep a register of warrants canceled under this act, in which shall be entered the number, date, and amount of the warrants, the name of the person in whose favor it was drawn, the fund out of which it was payable, and the date of cancellation. Whenever the owner of any warrant canceled under the provisions of this act demands such warrant from the controller, it shall be the duty of the controller to issue a new warrant for the same amount, in the name of the same person, and pay- able out of the same fund as the warrant canceled; and in case where a warrant 158 PUBLIC OFFICERS. 685 issued hy the controller, but not i:)aid by the treasurer, lias been canceled, and the owner or holder thereof presents the same for payment, it shall be the duty of the state conti'oller to drawa new warrant therefor, in the name of the same person, for the same amount, and payable out of the same fund as the original warrant, and such original warrant shall thereupon be canceled by bim and retained in his office as his voucher for issuing such new warrant. In all cases where a warrant shall be issued in lieu of one canceled, the word " duplicate " shall be plainly written or printed across the face thereof, in red ink, by the controller, and the issue thereof noted on the registry of canceled warrants kept in his office, and when any such duplicate Avarrant is paid by the state treasurer he shall note the payment thereof on the registiy of canceled warrants kept in his office. Interest coupons. Sec. 7. Whenever the interest coujDons attached to any registered bond of this state issued under either of the following named acts, to wit: an Act to provide for paying certain equitable claims against the State of California, and to contract a funded debt for that purpose, approved April 28, 1857; an Act to amend an act entitled an act to provide for paying certain equitable claims against the State of California, and to contract a funded debt for that purpose, approved April 28, 1857, approved April 27, 1860; an Act for the relief of the enlisted men of the California volunteers in the service of the United States, aj)proved April 27, 1863; an Act granting bounties to the volunteers of this state, enlisted in the service of the United States, for issuing bonds to provide funds for the payment of the same, and to levy a tax to pay such bonds, approved April 4, 1864; and an Act authorizing the issuance of state bonds to the amount of two hundred and fifty thousand dollars, to be known as state capitol bonds, approved April 4, 1870, shall not be presented to the state treasurer for j^ayment for a j)eriod of one year after such coupon has become due and joayable, it shall be the duty of the state treasurer to furnish the state controller and state board of examiners each with a list of such coupons not presented for payment, with the amount thereof , whereupon the state controller shall order the treasurer to pla ce the money held by him for the payment of such coupons into the general fund of the state treasury, and the amount so ordered into the general fund shall be placed to the credit of said fund on the books of the controller and treasurer in the same manner as other moneys paid into the state treasury. Payment of interest coupons. Sec. 8. Whenever any of the interest coupons mentioned in the seventh section of this act are presented for payment, after the money to pay the same has been transferred to the general fund, such coupons shall be presented to the state board of examiners, which board shall audit and allow them out of the general fund of the state treasury, and shall transmit a voucher to the state controller upon which to draw his warrant upon the state treasurer. Upon the presentation of such warrant and the surrender to him of the coupons for the payment of which the said warrant is drawn, the state treasurer shall pay the same out of the general fund. Sec 9. Immediately after the passage of this act the state board of examiners shall examine the books in the state treasurer's office in which are pasted the coupons of the registered bonds of the state paid by him, and shall require the state treasurer to make out a list of all coupons not found therein, as provided ! for in section seven of this act, and the m oney held by him for the payment thereof shall be placed in the general fund as provided in this act. Sec 10. This act shall take effect from and after its passage. 159 G85 POLITICAL CODE. An Act to provide for the purchase of certain supijlies for state oflScers and memliers of the legislature. Approved March 16, 1876; 1875-6, 314. Board of examiners constituted a furnishing board. Section 1. The state board of examiners is hereby constituted ex officio a furnishing board, with the powers and duties hereinafter specified. To advertise for bids to furnish supplies. Sec. 2. It shall be the duty of said board, as often as it shall become neces- sary, to advertise for twenty days in two daily newspapers published in the city of San Francisco, and one daily newspaper published in the city of Sacramento, for sealed projjosals to furnish stationery, blank books, material for lights, fuel, and such other articles necessary for the use of said state and legislative officers as are entitled thereto, or any of them; and said board shall specify in said advertisement the amount and kinds of each article desired, samples or minute descrii^tions of which shall accompany and be deposited, with the sealed proposals for furnishing the same, in the office of the secretary of state; and all proposals received as aforesaid shall be opened and compared by said board, any two of whom shall constitute a quorum, at the governor's office, at twelve o'clock m. of the day specified in the said advertisement; and the said board shall then and there award the contract for furnishing said supplies, or any of them, to the lowest bidder, whose sealed bid shall be accompanied by a bond with two or more sureties, in the sum of $ , the sum to be not less than twice the amount of the value of the articles to be supplied, payable to the people of the State of California, conditioned that if the bidder shall receive the award of said contract he will, in ten days thereafter, deliver the supplies or articles for which he has been awarded the contract; provided, that in their said advertisement said board may classify said supplies and articles, and may receive bids and award contracts for such separate articles or class of supplies as they shall deem the lowest and best; provided further, that said board may require any class or aiiicles of said supplies to be dehvered in installments, and jDaid for on delivery; jorovided further, that any and all bids which shall be deemed too high by said board may be declined, in which case said board shall again advertise for sealed proposals to furnish the classes or articles of supply so declined, and so on for the same cause, as often as it shall occur; and pro- vided further, that in such case, said board may purchase any articles or supplies for which bids have been rejected as aforesaid, in open market, and in amounts sufficient for immediate necessities, but at prices not exceeding the lowest prices in the bids rejected. Secretary of state to open stationery accounts. Sec. 3. It shall be the duty of the secretary of state, immediately after the passage of this act, to take a full and complete inventory of all stationery, blank books, and other aiiicles and supplies aforesaid, then on hand, and enter the same in a set of books to be kept for that purpose, making a separate account for each class of articles; and in like manner he shall enter in said books a detailed and classified account of all purchases of articles and supplies authorized by this act, showing the amount and cost of each article and class of supplies purchased, the amount and cost of each class issued, amount and cost of each article and class issued to each state officer and member of the legislature, and amount and cost of each article and class on hand. He shall issue the supplies aforesaid only ujion the rec[uisition of the proper officer, and shall take a receipt for the same upon delivery, which requisition and receipt shall be filed and preserved in his office. IGO PUBLIC OFFICERS. G85-700 Board to take inventory of siippUes. Sec. 4. It shall be the duty of said board, at the end of each fiscal year, and at such other times as they shall deem necessary, to cause an inventory to be taken of all the articles and classes of said supplies on hand and contracted for, and to make an examination of the amounts and vouchers aj^pertaining to the same. Board to report to legislature. Sec. 5. It shall be the duty of said board, at least one month previous to the assembling of each legislature, to advertise, in accordance with section two of this act, for a sujDply of stationery, fuel, and such other articles as shall be sufficient for the use of the state officers and members of the legislature, or necessary for the public service, and at the commencement of each session said board shall report to the legislature a full account of their receipts and expen- ditures, and stock of supplies on hand. Expenses of board. Sec. 6. The actual exjDenses incurred by said board in executing the powers and discharging the duties jirescribed and imposed in this act, when certified by them, shall be audited by the controller, and paid by the treasurer of said state out of any money which shall have been appropriated for that purpose ; provided, nothing in this act shall be construed as allowing salary or compen- sation to said furnishing board for any service performed as such board. Sec. 7. All acts and parts of acts in conflict with this act are hereby re- pealed. ARTICLE XIX. POWERS AND DUTIES OF OTHER EXECUTIVE OFFICERS. 695. Vaccine agent. Sec. 695. The powers and duties of the vaccine agent are prescribed in Title VII of Part III of this Code. [See post, 2993-2994.] 696. Commissioner of immigration. Sec. 696. Those of the commissioner of immigration are prescribed in Title VII, Part III of this Code. [See post, 2964-2968.] 697. State capital commissioners. Sec. 697. Those of the state capitol commissioners are prescribed by " An Act to provide for the construction of the state capitol in the city of Sacra- mento," approved March twenty-ninth, eighteen hundred and sixty, and the acts amendatory thereof, which are hereby continued in force. 698. [Sec. 698,'^' relating to the tide land commissioners, was rej)ealed by act of February 4, 1876; Amendments, 1875-6, 15; took effect from passage. See the act, ante, 365.] 699. Port wardens. Sec. 699. Those of port wardens are prescribed in Title VI of Part III of this Code. [See post, 2501-2511.] 700. Ha7'hor commissioners. Sec. 700. Those of harbor commissioners are prescribed in Title VI of Part III of this Code. [See post, 2521-2572.] (a) Repealed section: and sixty-eight, and the acts amendatory thereof, ap- Sec. 698. Those of the tide land commissioners are proved April first, eighteen hundred and seventy, prescribed by "An Act to survey and dispose of certain which are hereby continued in force. salt mursh and tide lands belonging to the State of Cal- The acts referred to in this repealed section were also ifornia," approved March thirtieth, eighteen hundred repealed by the act of February i, 1876; see ante, 365. 11 161 701-715 POLITICAL CODE. 701. Pilots. Sec. 701. Those of pilots are prescribed in Title YI of Part III of this Code. [See post, 2429-2401.] 702. [Sec. 702/"^ relating to the San Francisco marine board, was repealed by act of January 13, 1876; Amendments, 1875-G, 14; took effect immediately.] 703. Pilot commissioyiei'S. Sec 703. Those of pilot commissioners are prescribed in Title YI of Part III of this Code. [See post, 2429-2591.] 704. Boards of health. Sec. 704. Those of the boards of health are prescribed in Title YII of Part III of this Code. [See post, 2978-3082.] 705. Board of agriculture. Sec 705. Those of the board of agriculture are prescribed in the special statute creating the board. 706. Board of equalization. Sec 706. Those of the board of equalization are prescribed in Title IX of Part III of this Code. [See post, 3672-3705.] 707. Begents of university. Sec 707. Those of the regents of the university of California in Chapter I of Title III of Part III. [See post, 1425-1451.] 708. State board of education. Sec 708. Those of the state board of education are prescribed in Chapter III of Title III of Part III of this Code. [See post, 1517-1532.] 709. Trustees of normal school. Sec 709. Those of the trustees of the state normal school are prescribed in Chapter II of Title III of Part III of this Code. [See post, 1487-1507. ] 710. Officers of libraries. Sec 710. Those of the trustees of the state library, state librarian and libra- rian of the supreme court library, are prescribed in Chapter III of Title V of Part III of this Code. [See post, 2292-2316.] 711. Directors of state prison. Sec. 711. Those of the directors of the state prison are prescribed in Part III of The Penai. Code. [See post, 14,573-14,595.] 712. Officers of insane asylum. Sec 712. Those of the directors and other officers of the insane asylum are prescribed in Chapter I of Title Y of Part III of this Code. [See post, 2136- 2222.1 713. Trustees of asylum for deaf, dumb, and blind. Sec 713. Those of the trustees of the asylum for the deaf, dumb, and blind, are j^rescribed in Chapter II of Title V of Part III of this Code. [See post, 2237-2282.] 714. Trustees of state burying grounds. Sec 714. Those of the trustees of the state burying grounds are jDi'escribed in Title YIII of Part III of this Code. [See post, 3597.] 715. Yosemife and liig 'Tree commissioners. Sec 715. Those of the commissioners of the Yosemite valley and the Mariposa big tree grove are prescribed in Title VIII of Part III of this Code. [See post, 3584-3586.] (a) Repealed Bection: the port of San Francisco are prescribed In Title VI of Sec. 702. ThoBe of members of the marine board for Part III of this Code. 162 PUBLIC OFFICERS. 726-739 CHAPTER IV. JUDICIAL OFFICERS. 726. Number, designation, and mode of election. Sec. 72G. The number, designation, and mode of election of judicial officers are fixed in Title I, Part I of The Code or Civil Pkoceduke. [See post, 10,033.] CHAPTER V. SALARIES OF JUSTICES OF THE SUPREME COURT AND DISTRICT JUDGES, AND OFFICERS CONNECTED WITH THE SUPREME COURT. 736. Salary of justices of supreme court. Sec. 736. The annual salaiy of each justice of the supreme court is six thou- sand dollars. 737. Salary of district judges. Sec 737. The annual salaries of the judges of the third, fourth, sixth, twelfth, fifteenth, and nineteenth judicial districts are six thousand dollars each. [Amendment, approved Mar-ch 30, 1874; Amendments 1873-4, 12; took effect July 6, 1874.<''> 738. Salary of district judges. Sec. 738. The annual salaries of the judges of the other districts are five thousand dollars each. An Act to regulate the salary of the district judge of the sixteenth judicial district. Approved March 30, 1872 ; 1871 2, 796. Salary of sixteenth district judge. Sec 1. The salary of the district judge of the sixteenth judicial district of the State of California shall be five thousand dollars per annum from and after the first day of January, a. d. eighteen hundred and seventy-four. [The salary of the district judge of the twenty-first judicial district is fixed at four thousand dollars per annum by section 6 of the act of February 15, 1876; 1875-6, 58, creating that district. See ante, 142. The salary of the district judge of the twenty-second judicial district is fixed at five thousand dollars per annum by section 6 of the act of March 29, 1876; 1875-6, 528, creating that district. See ante, 142.] 739. Salaries of officers connected with the supreme court. Sec 739. The annual salaries of the officers connected with the supreme court are as follows : The reporter of the decisions, six thousand dollars; The phonographic reporter, three thousand dollars; The secretary, three thousand dollars; The bailiff, twelve hundred dollars. I CHAPTER VI. ' MINISTERIAL AND OTHER OFFICERS CONNECTED WITH THE COURTS. , Abticle I. Cleek of the Supreme Court 749 I II. Kepokters of the Supreme Court 767 III. Notaries Public 791 IV. Commissioners of Deeds 811 V. Other Officers 827 (a) The original section did not include the third and nineteenth judicial districts. 163 749-756 POLITICAL CODE. AETICLE I. CLEEK OF THE SUPREME COUET, 749. Election and term ofo-ffice. Sec. 749. The clerk of the supreme court is elected at the same time the governor is elected, and holds his office for the term of four years from and after the first Monday in December next succeeding his election. 750. General duties. Sec 750. The clerk of the supreme court must perfoim such duties as are prescribed in the Penal Code and Code of Civil Procedure, and such duties as may be reqiiired of him by the rules and practice of the court. 751. 3Iay appoint two deputies. Sec 751. He may appoint two deputies. [Amendment, approved January 20, 1876; Amendments 1875-6, 23; took effect immediately.^"^ 752. Fees. Sec 752. He must collect, in United States coin, the following fees: For each civil case appealed to the supreme court, fifteen dollars (payable when the transcript is filed), in full for all serAdces rendered in each case up to and including remittitur to court below; For dismissing on clerk's certificate, two dollars and fifty cents; For all services rendered in each original proceeding, ten dollars; For certificate of admission as attorney and counselor, ten dollars; For making and certifying each copy of any jDaper, document, or record in his office, the sum of fifteen cents per folio; but this fee must not be taxed against the 2:)arties to suits for an}' paper or copies of papers necessary up to and including the remittitur. 753. Disposition of fees. Sec 753. All fees collected by him, except such as may be collected under the laws in force prior to the first day of December, eighteen hundred and sixty- seven, must be paid into the state treasury; eighty per cent, thereof to the credit of the general fund, and twenty per cent, thereof to the credit of the supreme court library fund. 754. Settlements, ivhen and how made. Sec 754. He is responsible and must account for, and in his settlements with tlie controller must be charged with, the full amount of all fees collected or cliargeable and accruing in causes brought into the court for services rendered therein up to the time of each settlement (except such fees as are collected under the laws referred to in the jireceding section), and must at the end of eveiy month pay the same into the state treasury. He must also, at the end of every month, render to the controller of state, in such fonn as that officer jn-escribes, an account in detail, under his own oath, of all fees chargeable and accnaing iu causes brought) into court and not included in his previous accounts rendered. His salaiy must not be allowed or paid until all fees so accruing, and for which he is chargeable, have been accounted for and paid over. 755. Salary of clerk. Sec 755. The annual salary of the clerk of the supi-eme court is four thou- sand dollars. 756. Salary of deputies. Sec 756. The annual salary of the deputy clerks is eighteen hundred dol- lars. The salaiy of one of said deputies shall be paid by the city and county (a) The origiuul fiectiou instead of " two (Icputies " bad the words " one deputy." 164 PUBLIC OFFICERS. 75G-77G of San Francisco. [Amendment, approved January 20, 1S7G; Amendments 1875-6, 23; took effect immediately}"^ 757. Official bond. Sec. 757. The clerk of the supreme court must execute an official bond in the sum of ten thousand dollars. ARTICLE II. REPORTERS OF THE SUPREME COTJET. 767. Reporter of decisions, appointment and term. Sec 767. The supreme coui-t may, by an order entered upon the minutes, appoint a reporter of its decisions, to hold office at its pleasure. 768. Affidavit to he made by app)ointee before order is entered. Sec. 768. After the order is made, and before it is entered on the minutes, the person named therein must take and file with the clerk an affida\'it as follows : "I do swear that I have neither solicited nor procured any other person to advise, suggest, counsel or solicit my appointment to the position of reporter of the decisions of this court." 769. Phonographic reporter, appointment and term. Sec. 769. The sujjreme court may also, in like manner, appoint a phonographic reporter for the court, to hold office at its pleasure. 770. Duties of phonographic reporter. Sec. 770. It is the duty of the phonographic reijorter to attend upon the court during its sessions, and to: 1. Note the points made by counsel in oral arguments; 2. To take down all opinions of the court delivered orally; 3. Write out his notes in longhand, ujDon the order of the court, and deliver such writing to the reporter of the decisions of the court; 4. Perform such other duties as may be imposed upon him by the court or a justice thereof. 771. General duties of reporter of decisions. Sec 771. The rej)orter of the decisions of the supreme court must prej)are a report of such cases decided as he may by the court be directed to report. 772. Reports from p)honographic notes. Sec 772. He must, from the notes delivered to him by the phonographic reporter, prej^are a report of each of the cases included therein, and after pre- paring such report, must submit it to the court for correction and approval. 773. Reports, what to include. Sec 773. Each report must be made in manner and form as the court may direct. 774. Justices must supervise i^ublication. Sec 774. The reports must be published under the supervision of the court, and to that end each of the justices must be furnished by the reporter with proof sheets of each volume thirty days before its final publication. 775. Proof sheets. Sec 775. AVithin thirty days after such proof sheets are furnished, the justices may return them to the reporter with corrections or alterations, and he must make the corrections or alterations accordingly. 776. Original papers. Sec 776. The reporter may take the original opinions and papers in each case (a) The original section had the word " clerk " instead ot " clerks " and did not have the last sentence. 165 776-781 POLITICAL CODE. from the clerk's office, and retain them iu his possession not exceeding sixty days. 777. Style of reports. Sec. 777. The reports must be published iu -vN-ell-bound volumes, and must be printed on good book paper, in small pica, leaded, and brevier, equal in quality of paper and binding to volumes thirty-three to thirty-nine, inclusive, of California Re})orts. [Amendment, approved March 24, 1874; Amendments 1873-4, G8; took effect from passage; repealed conflicting acts.^''^ 778. To he p»?;Zis7ta/ hij contract. Sec. 778. The reporter shall have no pecuniary interest in the volumes of reports, but they must be published under the supervision of the court and reporter, by contract, to be entered into by the reporter, secretar}' of state, and attorney-general, with the person or persons who shall agree to piiblish and sell the said reports, for a period of ten years, on the terms most advantageous to the state and the public, and at a rate not to exceed four dollars per volume of seven hundred pages, [Aiyiendment, app)roved March 24, 1874; Amendments 1873-4, 68; took effect from passage; repealed conflicting acts.^^^ [Sees. 779 and 780, as originally enacted, ^"^ were repealed b}^ act of March 24, 1874, and the following new sections substituted in their place:] 779. Advertising for j^roposals. Sec 779. Before entering into said contract, it shall be the duty of the secre- tary of state to advertise for proposals for the publication of said repoi^ts, for thirty days, in one daily paper in Sacramento, and one daily paper in San Francisco. It shall be the duty of said reporter, secretary of state, and attor- ney-general, to consider all proposals for the publication of said reports which may be made to them, and to award the contract to the person or persons who ma}^ agree to publish and sell the same on the terms most advantageous to the state and public. [New (substituted) section, app)roved March 24, 1874; Amend- ments 1873-4, 69; took effect from jpassage; repealed conflicting acts. 780. Contract, ivhat to require. Sec 780. The contract must require the publisher to print and publish each volume in the style required by section seven hundred and seventy-seven, within sixty days from the time at which the manuscrijDt is delivered by the repoiier, to sell three hundred copies to the state at the j^rice fixed in the con- tract, and to keep on hand and for sale, at the price stipulated in the contract, a sufficient number of copies of each volume to supply all demands for six years from the publication thereof, and to give bonds for the fulfillment of the terms of the contract, in the sum of ten thousand dollars. [New (substitided) section, approved March 24, 1873-4; Amendments 1873-4,69; took effect from passage; repealed conflicting acts. 781. Secretary of state to purchase volumes for use of state. Sec 781. On the publication of each volume of reports, the secretary of state must purchase, for the use of the state, three hundred copies of said volume at (a) Original Bection: paper, in long primer leaded, except the title-page, the S>;c. 777. The reports must be published in well- table of cases, the synopsis, and index. The reporter bound volumes, and must be printed on good book must copyright each volume of the reports in his own paper, iu long primer leaded, except the title-page, the name; but such coijyright shall be the propez-ty of the taVjle of cases, the syTioi)sis, and index. state. Tlie section was amended by act of March 30, 1874 (h) Original section: (.\m(ndments lH7:i-l, 12) so as to read as below; but Sec. 778. An edition of twelve hundred copies of by ojieration of section 117 of the amendatory act of each volume must be jiublished. March :iO. 1H74 (se<' Amendments 187:}-4, (30; post 44.57) (c) Original sections: the amendment of March 24, lh74 (given in the text) Sec. 77'.». The printing and binding must be done by sup'-rsedcd botli the original section and the following the state printer, amendment of March :iO, 1874: Skc. 780. The reporter must, as soon as it is piib- Sk.c. 777. The reports jnufX be published In well- lished, deliver to the secretary of state the whole of bound volumes, and must be i)rinted on good book the edition. 166 PUBLIC OFFICERS. 781-791 the piice named in the contract, not exceeding four dollars per volume, and after having distributed the same, as required by section four hundred and ten, shall deposit the surplus copies, if any there be, in the state library. [Amend- ment, approved March 24, 1874; Amendments 1873-4, 70; took effect from ptcii^^cige ; repealed covjlicting acta}"'' 782. Duty of secretary of state, when the proposals are received. Sec. 782. If, after advertising as required by section seven hundred and seventy-nine, no proposals are received by the secretary of state agreeing to print, publish, and sell said volumes at a price not exceeding four dollars per volume, then the state printer must print and bind twelve hundred copies of each volume, and deliver to the secretary of state all the copies printed by him; and the secretary of state must keep the copies of the edition not distrilmted under the provisions of section four hundred and ten on sale at four dollars per volume, at retail, and at such wholesale price as may be fixed by the governor, controller, and secretary of state, and must, at the end of each month, pay into the state treasury the proceeds of all sales made by him. This act shall not apjily to any volume of reports, the j^rinting of which may have been com- menced by the state printer at the time the contract herein provided for is made. [New section, approved March 24, 1874; Amendments 1873-4, 70; took effect from passage ; rejjealed conflicting acts. ARTICLE III. NOTARIES PUBLIC. 791. Number of notaries. Sec. 791. The governor must appoint and commission notaries public as follows : For the county of San Francisco, twenty-two; For the counties of Alameda, Sacramento, San Joaquin, Santa Clara, Amador, Butte, Calaveras, Contra Costa, El Dorado, Los Angeles, Monterey, Nevada, Placer, Santa Cruz, Solano, Sonoma, Tuolumne, Yolo, and Yuba, twenty each; for each of the other counties, fifteen. [Amendment, approved March 30, 1874; Amendments 1873-4, 13; took effect July 6, 1874.^^^ Additional notaries in Fresno, Tulare and Humboldt counties. An Act to provide for the appointment of additional notaries public in the counties of Fresno, Tulare and Humboldt. Approved January 9, 1874; 1873-4, 20. Section 1. The governor shall have the power and is hereby authorized to (a) Original Bection: Sec. 781. The secretary of state must keep on sale, at four dollars jjer volume, the copies of the edition not distributed under the provisions of section 410, and must, at the end of each month, pay into the state treasury the proceeds of all sales made by him. The section was amended by act of March 30, 1874 (Amendments 1873^, 13), so as to read like the origi- nal section with the exception of the words " three dollars" instead of " four dollars:" but by operation of section 117 of the amendatory act of March 30, 1874 (see Amendments 1873-4, 60; post 4457), the amend- ment of March 24, 1874 (given in the text) superseded both the original section and the amendment of March 30, 1874. (6) Original section: Sec. 791. The governor of the state must ajopoint and commission notaries public as follows: For the coun- ties of Alameda and Sacramento, twelve each; for the counties of Amador, Contra Costa, Mariposa, Mon- terey, Napa, San Diego, and Stanislaus, eight each; for the counties of Alpine, Colusa, Del Norte, Fresno, Humboldt, Inyo, Klamath, Lake, Lassen, Mono, Plu- mas, San Bernardino, San Luis Obispo, San Mateo, Santa Barbara, Santa Cruz, Shasta, Sutter, Tehama, Trinity, Tulare, and Yolo, five each; for the counties of Butte, Calaveras, El Dorado, Sierra, and Tuolumne, thirteen each; for the counties of Kern, Marin, and Merced, seven each; for the county of Los Angeles, nine— one to reside on Santa Catalina Island ; for the eounties of Mendocino, Placer, and Yuba, ten each; for the county of Nevada, eighteen; for the county of San Francisco, twenty-one; for the covmties of Sun Joaquin and Siskiyou, fifteen each; for the countj- of Santa Clara, eight — two to reside in Santa Clara To\vu- ship, and one in Gilroy Township; for the county of Solano, nine; for the county of Sonoma, nine— one to reside in Healdsburg. The number of notaries piiblic provided for by the original section just given was increased by special acts in 1872, as follows: County. Butte Contra Costa . . . Humboldt Monterey Plumas Placer Sacramento San Diego San Francisco . . Sonoma Solano Ventura Two. Three. Three. Two. One. Two. Four. Three. One. One. Two. Five. Date of Act. -Tan. 26, 1872... Feb. 1, 1872 ... Feb. 20, 1872 . March 30, 1872 March 8, 1872.. Jan. 20, 1872... April 1, 1872... March 4, 1872., March 1, 1872. . Feb. 13,1872... Jan. 18, 1872... March 22, 1872 1871-2, 1871-2, 1871- 1871-2, 1871-2, 1871- 1871-2, 18T1-2, 238 1871-2, 184 1871-2, 95 1871-2, 24 1871-2, 489 46 159 792 3r4 ;3 881 1G7 791 POLITICAL CODE. appoint and commission four notaries public in each of tlie counties of Fresno, Tulare and Humboldt, in addition to the number now authorized by law to be appointed in said counties, who shall hold their offices for the pei-iod of two years and until their sviccessors shall have been appointed and qualified. Sec. 2. This act shall take effect from and after its passage. Additional notaries in Santa Clara, Napa, Santa Barbara, San Luis Obispo and Sonoma counties. An Act to proYido for the appoiutment of additional notaries public in some of the counties of this state. Approved January 19, 1874; 1873-4, 30. Section 1. The governor is hereby authorized to appoint and commission notaries public in the following counties, in addition to those now authorized by law : In the county of Santa Clara eight, one of whom shall have his place of busi- ness at Mayfield, one at San Felipe, one at Milpitas, one at Saratoga, and one at Gilroy township, and one at Mountain View. In the county of Napa, one to reside at Yountville. In the counties of Santa Barbara and San Luis Obispo, three each. In the county of Sonoma two, one to reside at Pine Flat. Sec 2. This act shall take effect immediately. Notaries in San Benito county. An Act to create the county of San Benito, to establish the boundaries thereof, and to pro- vide for its organization. Approved February 12, 1874; 1873-4, 95. Sec 14. San Benito county shall be entitled to five notaries public, as i^ro- vided by law. Additional notaries in Stanislaus county. An Act to add five notaries public in Stanislaus county. Approved February 17, 1874; 1873-4, 108. Section 1. That in addition to the notaries public now provided for by law, the governor shall appoint five additional notaries public for the county of Stanislaus. Sec 2. This act shall take effect from and after its passage. Notaries in Modoc county. An Act to create the county of Modoc, to establish the boundaries thereof, and to jn-ovide for its organization. Approved February 17, 1874; 1873-4, 124. Sec 15. Modoc county shall be entitled to five notaries public, as provided by law. Additional notary in San Francisco city and county. An Act to provide for the appointment of an additional notary pulilic for the city and county of San Francisco, for the accommodation of the inhabitants of said city and county residing south of Market street. Approved February 20, 1874; 1873-4, 139. Section 1. The governor is authorized to appoint and commission one addi- tional notaiy public for the city and county of San Francisco, who, when duly qualified under and according to the laws of the state governing notaries public, shall be invested with all the official powers and qualifications, and subject to all the duties and liabilities of other notaries public lawfully appointed, com- missioned and qualilied for said city and county. Sec 2. Said notary public shall keep an office for the transaction of business in that portion of the city and county of San Francisco south of Market street. Sec 3. This act shall take effect and be in force from and after its passage. 168 PUBLIC OFFICEKS. 791-795 Additional notary for Los Angeles county. Au Act to provide for the appointment of an additional notary public for the county of Los Anceles. Approved March 10, 1874; 1873-4, 327. Section 1. For the county of Los Angeles, an additional notary public shall be aj)pointed by the governor, to reside at Anaheim, who shall hold office for the term of two years, and until his successor is aj)pointed and qualified. Sec. 2. This act shall take efl'ect and be in force on and after its passage. Additional notaries in Inyo county. An Act to provide additional notaries public in the county of Inyo. Approved March 24, 1874; 1873-4, 574. Section 1. The governor is hereby authorized to appoint two additional nota- ries public in and for the county of Inyo; and said notaries, when appointed, shall hold office under and by virtue of all the laws now or hereafter jDertaining to said officers. Sec. 2. This act shall take effect from and after its passage. 792. Best7'ictions as to residence. Sec. 792. Every person appointed as notary public must at the time of his appointment be an elector of the county for which he is appointed, and must continue to reside in such county. 793. Ter7n of office. Sec. 793. The tenn of office of a notary public is two years from and after the date of his commission. 794. General duties of. Sec. 794. It is the duty of notaries public : 1. When requested, to demand accej^tance and payment of foreign, domestic, and inland bills of exchange, or promissory notes, and protest the same for non-accei)tance and non-payment, and to exercise such other powers and duties as by the law of nations and according to commercial usages, or by the laws of any other state, government, or country, may be performed by notaries; 2. To take the acknowledgment or proof of powers of attorney, mortgages, deeds, grants, transfers, and other instruments of writing executed by any per- son, and to give a certificate of such proof or acknowledgment, indorsed on or attached to the instrument; 3. To take depositions and affidavits, and administer oaths and affirmations, in all matters incident to the duties of the office, or to be used before any court, judge, officer, or board in this state; 4. To keejD a record of all official acts done by them; 5. To keep a record of the parties to, date, and character of every instrument acknowledged or proved before them; 6. "When requested, and upon payment of their fees therefor, to make and give a certified copy of any record in their office ; 7. To provide and keep official seals, upon which must be engraved the arms of this state, the words " notary public," and the name of the county for which they are commissioned; 8. To authenticate with their official seals all official acts. 795. Protest prima facie evidence of facts stated. Sec. 795. The protest of a notary, under his hand and official seal, of a bill of exchange, or promissory note, for non-acceptance, or non-payment, stating the presentment for acceptance or j^ayment, and the non-accei)tance or non-jDay- meut thereof, the service of notice on any or all of the parties to such bill of 169 795-811 POLITICAL CODE. excliang-e or promissory note, and specif3'ing tlie mode of giving sucli notice, and the reputed place of residence of the party to such bill of exchange or promissory note and of the party to whom the same was given, and the post- office nearest thereto, is prima facie evidence of the facts contained therein. [Amendment, approved March 30, 1874; Amendments 1873—4, 13; took effect July 6, 1874.(''> 796. Ficcords of, on death or resignation. Sec. 796. If any notary die, resign, is disqualified, removed from office, or removes from the county for which he is appointed, his records and all his public papers must, within thirty days, be delivered to the clerk of the county, who must deliver them to the notary's successor, when qualified. 797. Certified cojnes of records of a jyredecessor. Sec. 797. Every notary having in his possession the records and papers of his predecessor in office, may grant certificates or give certified copies of such records and papers, in like manner and with the same effect as such predecessor could have done. 798. Fees. Sec. 798. The fees of notaries are as follows: For drawing and copying every protest for the non-payment of a promissory note, or for the non-payment or non-acceptance of a bill of exchange, draft, or check, two dollars. For draw- ing and serving eveiy notice of non-payment of a promissory note, or of the non-payment or non-acceptance of a bill of exchange, order, draft, or check, one dollar. For recording every protest, one dollar. For drawing an affidavit, deposition, or other paper, for which provision is not herein made, for each folio, thirty cents. For taking an acknowledgment, or proof of a deed, or other instrument, to include the seal and the writing of the certificate, for the first two signatures, one dollar each, and for each additional signature, fifty cents. For administering an oath or affirmation, fifty cents. For every cer- tificate, to include writing the same and the seal, one dollar. [Amendmerif, approved 31arch 16, 1874; Amendments 1873-4, 71; took effect from passage, '^^^ 799. Official bond. Sec 799. Each notary must execute an official bond in the sum of five thou- sand dollars, which bond must be apj^roved by the county judge of his county, and filed and recorded as other official bonds of county officers. 800. Certificate of filing bond and oath. Sec 800. Each notary, as soon as he has taken his official oath and filed his official bond, must transmit a certificate of the facts, under the hand and seal of the county clerk, to the office of the secretary of state. 801. Liabilities on official bond. Sec. 801. For the official misconduct or neglect of a notary public, he and the sureties on his official bond are liable to the parties injured thereby for all the damages sustained. ARTICLE IV. COMMISSIONERS OF DEEDS. 811. Governor to appoint. Sec. 811. The governor may appoint in each state of the United States, or in any foreign state, one or more commissioners of deeds, to hold office for the term of four years from and after the date of their commission. (a) The original section used the word " iiriumry " vided for, twenty centB for each folio was allowed, and instead of " prima facie." for an acknowlcdf^inent or proof of a deed or other (h) The original section provided for only one lialf inKtrumcnt fifty cents for the first signature indud- the amount of fees allowed by the amcudment, except iii'-,' stal aud certificate and twenty-five cents for each that for drawng papers not otherwise specially pro- additional signature. 170 PUBLIC OFFICERS. 812-831 812. General duties of. Sec. 812. Every commissioner of deeds lias power within the state for which he is ai)j)ointed: 1. To administer and certify oaths; 2. To take and certify depositions and affidavits; 3. To take and certify the acknowledgment or proof of 2)owers of attorney, mortgages, transfers, grants, deeds, or other instruments for record; 4. To provide and keep an official seal, upon which must be engraved the arms of this state, the words "Commissioner of Deeds for the State of Cali- fornia," and the name of the state for which he is commissioned; 5. To authenticate, with his official seal, all his official acts. 813. Effect of acts done by commissioners. Sec. 813. All oaths administered, depositions and affidavits taken, and all acknowledgments and proofs certified by commissioners of deeds, have the same force and effect, to all intents and jDurposes, as if done and certified in this state by any officer authorized by law to perform such acts. 814. Oath, ivhen to be fled. Sec. 814. The official oaths of commissioners of deeds must be filed in the office of the secretary of state within six months aftei> they are taken. 815. Fees. Sec 815, The fees of commissioners of deeds are the same as those pre- scribed for notaries public. 816. List of commissioners to be published. Sec. 816. The names of all persons appointed commissioners must be pub- lished three times in some weekly newspaper published at the seat of govern- ment of the state. 817. Copy of this article to be transmitted to appointee. Sec. 817, The secretary of state must transmit, with the commission to the aj)pointee, a certified copy of this article, and of secbion 798, ARTICLE V. OTHER ornoEKS. 827. Court commissioners. Sec 827. The mode of appointment, powers, and duties of court commis- sioners are fixed by Chapter II, Title III, Part I of The Code of Civn. Proceduee. [See post, 10,258.] 828. Secretary and bailiff of the snpreme court. Sec 828. The mode of appointment, powers, and duties of the secretary and bailiff of the supreme court are fixed by Chapter II, Title TV, Part I of The Code of Civil Procedure. [See post, 10,265.] 829. Phonographic reporters. Sec. 829. The mode of appointment, powers, and duties of phonographic reporters are fixed by Chapter III, Title IV, Part I of The Code of Civil Pro- cedure, and sections 769 and 770 of this Code. [See post, 10,269.] 830 . Clerks, sheriffs, coroners, and other county officers, etc. Sec. 830. The mode of election of clerks, sheriffs, coroners, and other county and townshij) officers is fixed by Part IV of this Code. [See post, 3901.] 831. Attorneys and counselors at law. Sec 831. The admission of attorneys and counselors at law is provided for and their duties fixed in Chapter I, Title V, Part I of The Code of Civil Pro- cedure. [See post, 10,275.] 171 841-853 POLITICAL CODE. CHAPTER VII. GENERAL PROVISIONS RELATING TO DIFFERENT CLASSES OF OFFICERS. AeTICLE I. DlSQUALIPICATIONS 841 II. Restrictions upon the Kesidence of Officers 852 III. Powers of Deputies 865 IV. Appointment and Ddeation of Term 875 V. Nominations and Commissions 889 VI. Oath of Office 904 VII. Prohibitions Applicable to Certain Officers 920 VIII. Salaries, wuen Title is Contested 936 IX. Bonds of Officers 947 X. Resignations, Vacancies, and the Mode of Supplying them 995 XI. Proceedings to Compel Delivery of Books and Papers 1014 XII. Miscellaneous Provisions 1026 ARTICLE I. DISQUALIFICATIONS. 841. Age and citizenship. Sec. 841. No person is capable of holding a civil office who at the time of his election or appointment is not of the age of twenty-one years and a citizen of this state. An Act to make womeu eligible to educational offices . Approved March 12, 1874; 1873-4, 356. Women eligible. Section 1. Women, over the age of twenty-one years, who are citizens of the United States and of this state, shall be eligible to all educational offices within the state, except those from which they are excluded by the constitution. Sec 2. All acts and parts of acts in conflict with this act are hereby repealed. This act shall take effect from and after its passage. 842. Other disqualifications. Sec 842. Provisions respecting disqualification for particular offices are contained in the constitution and in the provisions of the codes concerning the various offices. 843. County officer not to act as deputy of another officer. Sec 843, No county officer must be appointed or act as the deputy of another officer of the same county, except in cases where the joay of the officer so ap- pointed amounts to a sum less than seventy -five dollars per month. [Amend- ment, approved March 15, 1876; Amendments 1875-6, 28; took effect from passage. '^'^^ AETICLE II. KESTEICTIONS UPON THE KESIDENCE OF OFFICERS. 852. Certain officers must reside in Sacramento. Sec. 852. The following officers must reside at and keep their offices in the city of Sacramento: The governor; secretary of state; controller; treasurer of state; attorney -general; suits' eyor-general; state printer; suiDerinteudent of public instruction; justices of the supreme court; clerk of the supreme court; reporters of the supreme court; and adjutant-general. 853. Absence from the stale. Sec. 853. No officer mentioned in the preceding section must absent himself (a) The original was a new section added hy act of 6,1874. It did not have the last clause commencing March 30, 1874 jAmeudmentB 1873-4, 14; took effect July with the words "except in cases where." 172 PUBLIC OFFICEES. 853-891 from the state for more tlian thirty days, unless upon business of the state or with the consent of the legislature. 854. Restrictions upon judicial officers. Sec. 854. Restrictions upon the residence of other judicial officers are con- tained in The Code or Civil Pkoceduke. 855. Restrictions xipon county officers. Sec. 855. Restrictions upon the residence of county officers are contained in Part IV of this Code. [See post, 4101 and 4119.] ARTICLE III. POWERS OF DEPUTIES, 865. Powers of deputies. Sec. 865. In all cases not otherwise provided for, each deputy possesses the powers and may perform the duties attached by law to the office of his principal. ARTICLE IV. APPOINTMENT AND DURATION OF TERMS. 875. Appointments, when not otherwise provided for . Sec. 875. Every officer, the mode of whose appointment is not prescribed by the constitution or statutes, must be appointed by the governor. 876. Deputies and subordinate officers. Sec. 876. All assistants, deputies and other subordinate officers, whose ap- pointments are not otherwise provided for, must be appointed by the officer or body to whom they are respectively subordinate. 877. Number of deputies. Sec. 877. When the number of such deputies or subordinate officers is not fixed by law, it is limited only by the discretion of the appointing power. 878. Term of office, when not prescribed. Sec. 878. Every office of which the duration is not fixed by law is held at the pleasure of the appointing power. 879. Holding over until successor is qualified. Sec. 879. Every officer must continue to discharge the duties of his office, although his term has expired, until his successor has qualified. ARTICLE V. NOMINATIONS AND COMMISSIONS OF OFFICERS. 889. Nominations to senate must be in writing. Sec. 889. Nominations made by the governor to the senate must be in writing, designating the residence of the nominee and the office for which he is nom- inated. 890. Resolution of concurrence. Sec. 890. Whenever the senate concurs in a nomination, its secretary must immediately deliver a copy of the resolution of concurrence, certified by the president and secretary, to the secretary of state, and another copy, certified by the secretary, to the governor. 891. Commissions by the governor. Sec. 891. The governor must commissions 1. All officers elected by the people whose commissions are not otherwise provided for; 173 891-909 POLITICAL CODE. 2. All officers elected b}- the legislature; 3. All officers of the militia; 4. All officers appointed by the governor, or by the governor -uith the advice and consent of the senate; 5. United States senators. 892. Form of commissions. Sec. 892. The commissions of all officers commissioned by the governor must be issued in the name of the people of this state, and must be signed by the governor and attested by the secretary of state, under the great seal. 893. Other commissions. Sec. 893. The commissions of all other officers, where no special provision is made by law, must be signed by the j^residing officer of the body or by the person making the appointment. 894. Appointment of deputies, etc., hoiv made. Sec. 894. The appointment of deputies, clerks, and subordinate officers, when not otherwise provided for, must be made in writing, filed in the office of the appointing power or the office of its clerk. AKTICLE VI. OATH OF OFFICE. 904. Oath, form of. Sec 904. Before any officer enters on the dvities of his office, he must take and subscribe the following oath: " I do swear [or affirm] that I will support the constitution of the United States and the constitution of the State of California, and that I will faithfully discharge the duties of the office of according to the best of my ability." 905. Oath of governor and lieutenant-governor. Sec. 905. The governor and lieutenant-governor must take the official oath in the presence of both houses of the legislature, in convention assembled, and an entry of the fact must be made upon the joiirnals of each house. 906. Oath of members of the legislature. Sec 906. Members of the legislature may take the oath of office at any time during the terra for which they were elected. 907. Oath, when taken. Sec 907. Whenever a different time is not prescribed by law, the oath of office must be taken, subscribed and filed within ten days after the officer has notice of his election or appointment, or before the expiration of fifteen days from the commencement of his term of office, when no such notice has been given. 908. Oath, before ivhom taken. Sec. 908. Except when otherwise provided, the oath may be taken before any officer authorized to administer oaths. 909. Oath, where fled. Sec 909. Every oath of office, certified by the officer before whom the same was taken, must be filed within the time required by law, except when other- wise specially directed, as follows: 1. The oath of all officers whose authority is not limited to any particular county, in the office of the secretary of state. 2. The oath of all officers elected or appointed for any county, and of all officers whose duties are local, or whose residence in any j^articular county is prescribed by law, in the offices of the clerks of their respective counties. 174 PUBLIC OFFICEKS. 910-926 910. Oath of deputies, etc. Sec. 910. Deputies, clerks, and subordinate officers must, within ten days after receiving notice of their appointment, take and file an oath in the manner required of their principals. ARTICLE VII. PEOHIBITIONS APPLICABLE TO CERTAIN OFFICERS. 920. Certain officers not to he interested in contracts. Sec 920. Members of the legislature, state, county, city, and township officers, must not be interested in any contract made by them in their official capacity, or by any body or board of which they are members, 921. Nor 2Mrchasers or vendors at certain sales. Sec. 921. State, county, township and city officers must not be purchasers at any sale nor vendors at any purchase made by them in their official capacity. 922. Contracts in violation, voidable. Sec 922. Every contract made in violation of any of the provisions of the two preceding sections may be avoided at the instance of any party except the officer interested therein. 923. Certain officers prohibited from dealing in scrip, etc. Sec 923. The state treasurer and controller, the several county, city, or town officers of this state, their deputies and clerks, are prohibited from purchasing or selling, or in any manner receiving to their own use or benefit, or to the use or benefit of any person or persons whatever, any state, county or city warrants, scrip, orders, demands, claims, or other evidences of indebtedness against the state, or any county or city thereof, except evidences of indebtedness issued to or held by them for services rendered as such officer, deputy, or clerk, and evidences of the funded indebtedness of such state, city, town, or corporation. 924. Auditing officers, duties of. Sec. 924. Every officer whose duty it is to audit and allow the accounts of other state, county, city or town officers must, before allowing such accounts, require each of such officers to make and file with him an affidavit that he has not violated any of the provisions of this article. : 925. Treasurer, duties of. " Sec 925. Officers charged with the disbursement of public moneys must not pay any warrant or other evidence of indebtedness against the state, county, city, or town, when the same has been purchased, sold, received, or transferred contrary to any of the provisions of this article . 926. When settlements must be withheld. ' Sec 926. Every officer charged with the disbursement of public money's, who is informed by affidavit that any officer whose account is about to be settled, audited, or paid by him, has violated any of the provisions of this article, must suspend such settlement or payment, and cause such officer to be prosecuted for such violation, by the district attorney of the county. In case there be judgment for the defendant upon such prosecution, the resjiective officer may proceed to settle, audit or pay such account as if no such affidavit had been filed. [Amendment, approved llarch 30, 1874; Amendments 1873-4, 14; took effect July 6, 1874.^^' (a) The original section did not have any of the words of the above amendment after the words "for such (Violation." 175 93G-955 POLITICAL CODE. AETICLE VIII. SALARIES OF OFFICERS WHEN TITLE IS CONTESTED. 936. Title contested, salary must not he paid. Sec. 936. When the title of the incumbent of an}' office in this state is cou- tested by proceedings instituted in any court for that purpose, no warrant can thereafter be drawn or paid for any part of his sahiry until such proceedings have been finally determined. 837. Pendency of suit must be certified by the cleric. Sec. 937. As soon as such proceedings are instituted, the clerk of the court in which they are pending must certify the facts to the officers whose duty it would otherwise be to draw such warrant or pay such salary. AETICLE IX. BONDS OF OFFICERS. 947. Time for filing bond. Sec 947. Every official bond must be filed in the proper office within the time prescribed for filing the oath, unless otherwise expressly provided by statute. 948. Approval, filing and recording bonds of state officers. Sec 948. Unless otherwise prescribed by statute, the official bonds of state officers must be approved by the governor, and filed and recorded in the office of the secretary of state. 949. Bond of secretary of state, where filed. Sec 949. The official bond of the secretary of state must, after it is recorded, be filed in the office of the treasurer of state. 950. Bonds of county and township officers, approval, filing and recording. Sec 950. Unless otherwise prescribed by statute, the official bonds of county and toAvnship officers must be approved by the county judge, recorded in the office of the county recorder, and then filed in the county clerk's office. 951. Eecord of official bond. Sec 951. Official bonds must be recorded in a book kept for that purpose, and entitled " Record of Official Bonds." 952. Approval must be indorsed on bond. Sec 952. The approval of every official bond must be indorsed thereon and signed by the officer approving the same. 953. Bond not to be filed before ajyproval. Sec 953. No officer with whom any official bond is required to be filed must file such bond until approved. 954. Condition of bond. Sec 954. The condition of an official bond must be that the principal will well, truly and faithfully perform all official duties then required of him by law, and also all such additional duties as may be imposed on him by any law of the State of California. Such bond must be signed by the principal and at least two sureties. 955. Justification of sureties. Sec 955. The officer whose duty it is to approve official bonds required of state, county, or tow^nship officers, must not accept or approve any such bond, unless each of the sureties severally justify before an officer authorized to administer oaths, as follows: First. On a bond given by a state officer, that such surety is a resident and freeholder or householder within this state; and on a bond given by a county or township officer, that such surety is a resident 17G PUBLIC OFFICERS. 955-9G2 and freeholder or householder within such county, or ^vithin an adjoining county. Second. That such surety is Avorth the amount for \\hieh he becomes surety, over and above all his debts and liabilities, in unincumbered property, situated within this state, exclusive of property exempt from execution and forced sale. Third. A member of the board of supervisors shall not be accepted as surety upon the official bond of any county or townshiji officer of his county; nor shall the sheriff, clerk, tax collector, treasurer, recorder, auditor, assessor, or district attorney of the same county become sureties upon official bonds for each other. [Amendment, approved March 30, 1874; Amendments 1873-4, 72; took effect sixtieth day after passage}"'' 956. Sureties for less than the penal sum. Sec. 956. When the penal sum of any bond required to be given amounts to more than one thousand dollars, the sureties may become severally liable for portions of not less than five hundred dollars thereof, making in the aggregate at least two sureties for the whole penal siim. And if any such bond becomes forfeited, an action may be brought thereon against all or any number of the obligors, and judgment entered against them, either jointly or severally, as they may be liable. The judgment must not be entered against a surety severally bound for a greater sum than that for which he is sjDecifically liable by the terms of the bond. Each surety is liable to contribution to his co-sureties in propoi'tion to the amount for which he is liable. 957. Custody of official bonds. Sec. 957. Every officer with whom official bonds are filed must carefully keep and preserve the same, and give certified copies thereof to any person demand- ing the same, upon being paid the same fees as are allowed by law for certified coj)ies of 2)apers in other cases. 958. Foim of bonds. Sec. 958. All official bonds must be in form joint and several, and made pay- able to the State of California in such j^enalty and with such conditions as required by this chapter, or the law creating or regulating the duties of the office, 959. Construction of bonds. Sec 959. Every official bond executed by any officer pursuant to law is in force and obligatory uj^on the principal and sureties therein for any and all breaches of the conditions thereof committed during the time such officer continues to discharge any of the duties of or hold the office, and whether such breaches are committed or suffered by the principal officer, his deputy, or clerk. 960. Obligation as to duties required by new acts. Sec. 960. Every such bond is in force and obligatory upon the principal and sureties therein for the faithful discharge of all duties which may be required of such officer by any law enacted subsequently to the execution of such bond, and such condition must be expressed therein. 961. Suit on bonds. Sec. 961. Every official bond executed by any officer pursuant to law is in force and obligatory upon the principal and sureties therein to and for the State of California, and to and for the use and benefit of all persons who may be injured or aggrieved by the wrongful act or default of such officer in his official capacity; and any person so injured or aggrieved may bring suit on such bond, in his own name, without an assignment thereof. 962. Subsequent suits. Sec 962. No such bond is void on the first recovery of a judgment thereon; (o) Tlie original section did not contain the third subdivision. 12 177 962-968 POLITICAL CODE. but suit may be afterwards brought, from time to time, and judgment recov- ered thereon by the State of California, or by any person to whom a right of action has accrued against such officer and his sureties, until the whole penalty of the bond is exhausted. 963. Defects in form, approval, filing, etc., not to vitiate. Sec. 963. ^'henever an official bond does not contain the substantial matter or conditions required by law, or there are any defects in the approval or filing thereof, it is not void so as to discharge such officer and his sureties; but they are equitably bound to the state or party interested; and the state or such party may, by action in any court of competent jurisdiction, suggest the defect in the bond, approval, or filing, and recover the projier and equitable demand or damages from such officer and the persons who intended to become and were included as sureties in such bond. 964. Insufficiency of sureties. Sec 964. Whenever it is shown by the affidavit of a credible witness, or otherwise comes to the knowledge of the judge, court, board, officer, or other person whose dut}' it is to approve the official bond of any officer, that the sureties or any one of them have, since such bond was approved, died, removed from the state, become insolvent, or from any other cause have become incom- petent or insufficient sureties on such bond, the judge, court, board, officer, or other person may issue a citation to such officer, requiring him, on a day therein named, not less than three nor more than ten days after date, to appear and show cause why such office should not be vacated, which citation must be served and return thereof made as in other cases. If the officer fails to appear and show good cause why such office should not be vacated, on the day named, or fails to give ample additional security, the judge, court, board, officer, or other person must make an order vacating the office, and the same must be filled as provided by law. 965. Form of additional bond. Sec. 965. The additional bond must be in such j^enalty as directed by the court, judge, board, officer, or other person, and in all other respects similar to the original bond, and approved by and filed with the same officer as required in case of the approval and filing of the original bond. Every such additional bond so filed and approved is of like force and obligation uj^on the principal and sureties therein, from the time of its execution, and subjects the officer and his sureties to the same liabilities, suits and actions as are prescribed respectiug the original bonds of officers. 966. Force of orvjinal bond. Sec 966. In no case is the original bond discharged or affected when an additional bond has been given, but the same remains of like force and obliga- tion as if such additional bond had not been given. 967. Liability of officers and sureties. Sec. 967. The officer and his sureties are liable to any party injured by the breach of any condition of an official bond, after the execution of the addi- tional bond, upon either or both bonds, and such party may bring his action upon either bond, or he may bring separate actions on the bonds resj^ectively, and he may allege the same cause of action, and recover judgment therefor in each suit. 968. Separate judgments on Jxjnds. Sec. 968. If separate judgments are recovered on the bonds by such party for the same cause of action, he is entitled to have execution issued on such judgments respectively; but he must oidy collect, by execution or otherwise, 178 PUBLIC OFFICEKS. 968-976 the amount actually adjudged to him on the same causes of action in one of the suits, together with the costs of both suits. 969. ContrihuHon behceen sureties. Sec. 969. Whenever the sureties on either bond have been compelled to pay- any sum of money on account of the prinei})al obligor therein, tliey are entitled to recover in any court of competent jurisdiction of the sureties on the remain- ing bond a distributive part of the sum thus paid, in the proportion which the penalties of such bonds bear one to the other and to the sums thus paid, res2:)ectively. 970. Discharge of sureties. Sec 970. Whenever any sureties on the official bond of any officer wish to be discharged from their liability, they and such officer may procure the same to be done if such officer will execute a new bond with sufficient sureties in like form, penalty, and conditions, and to be approved and filed as the original bond. Uj)on the filing and approval of the new bond such first sureties are exonerated from all further liability; but their bond remains in full force as to all liabilities incurred previous to the approval of such new bond. The liability of the sureties in such new bond is in all respects the same, and may be en- forced in like manner as the liability of the sureties in the original bond. 971. Persons appointed to fill vacancies, bonds of. Sec. 971. Any person appointed to fill a vacancy, before entering upon the duties of the office must give a bond corresponding in substance and form with the bond required of the officer originally elected or appointed, as hereinbefore Ijrovided. 972. Release of sureties. Sec 972. Any surety on the official bond of a city, town, county, or state officer, may be relieved from liabilities thereon afterwards accruing by comj^ly- ing with the provisions of the three sections following. 973. Statement for release. Sec 973. Such surety must file with the judge, court, board, officer, or other person authorized by law to approve such official bond, a statement in writing- setting forth the desire of the surety to be relieved from all liabilities thereon afterwards arising, and the reasons therefor, which statement must be sub- scribed and verified by the affidavit of the party filing the same. 974. Service. Sec 974. A copy of the statement must be served on the officer named in such official bond, and due return or affidavit of service made thereon as in other cases. 975. When office may be declared vacant for xoant of official bond. Sec 975. In ten days after the service of such notice, the judge, court, board, officer, or other person with whom the same is filed, must make an order declaring such office vacant, and releasing such surety from all liability there- after to arise on such official bond, and such office thereafter is in law vacant, and must be immediately filled by election or appointment, as jirovided for by law as in other cases of vacancy of such office, unless such officer has before that time given good and amj)le surety for the discharge of all his official duties as required originally. 976. Supplemental bond. Sec. 976. Whenever from any cause a suretj' on the official bond of any officer elected or appointed under the laws of this state withdraws from his bond or becomes insolvent, or from other cause becomes incomi^etent to remain as 179 97G-983 POLITICAL CODE. surety thereon, such officer may file a supplemental bond, executed aud approved in the same manner as the original bond, for the amount for which the suret}' so withdrawing or incompetent was bound by the original bond. 977. ED'ect of release on bond. Sec. 977. The release, discharge, voluntary' withdrawal, or incompetency of a surety on any official bond does not affect the bond as to the remaining sure- ties thereon, or alter or change their liability in any respect. 978. Supplemental bond after withdrawal. Sec. 978. "Whenever a surety on- any official bond gives notice of intention to withdraw therefrom, or is removed, or becomes otherwise incompetent, the prin- cipal on the bond must, within ten days after such notice or disqualification, execute and file, subject to the same conditions as the original, a supjjlemental bond, wherein must be recited the names of the remaining original sureties, and the name or names of the new surety or sureties and the respective amounts for which he or they become bound, who are substituted in lieu of the surety or sureties released or disc[ualified. 979. When supplemental bond not required. Sec. 979. Whenever the original bond is given for an amount in excess of the sum required by law, if the withdrawal or removal of any surety does not I'e- duce the bond below the amount required by law to be secured by sureties, then no supiDlemental or additional bond is rec[uired or necessary; and whenever any supplemental bond is so filed and approved, the officer with whom the bond is filed, or in whose office the same is recorded, must give ten days' notice — by publication in some paper published in the county, or if there is no paper in the county, then in the county nearest thereto in which a newspaper is published, and in case of the bond of a state officer, in some paper at the city of Sacra- mento — of the fact of the filing of the bond and the name of the party with- drawing from the former and the substitute on the new bond; and until the filing and approval of the supplemental bond the sureties on the former bond are liable for all the acts of their principal. 9S0. Effect of discharfje of sureties. Sec. 980. No surety must be released from damages or liabilities for acts, omis- sions, or causes existing or which arose before the making of the order men- tioned in section 975, but such legal proceedings may be had therefor in all respects as though no such order had been made. 981. Provisions of article apply to bonds of administrator , etc. Sec. 981. The provisions of this article apply to the bonds of receivers, executors, administrators, and guardians. 982. Bonds of receivers, assignees, etc. Sec. 982. All bonds or undertakings given by trustees, receivers, assignees, or officers of a court in an action or proceeding for the faithful discharge of their duties, where it is not otherwise provided, must be in the name of and payable to the State of California; and u})on the order of the court where such action or proceeding is pending may be prosecuted for the benefit of any and all persons interested therein. 983. Actions on official bonds — Effect of notice of action. Sec 983. When an action is commenced in any court in this state for the benefit of the state, to enforce the penalty of or to recover money upon au official bond or obligation, or any bond or obligation executed in favor of the State of California, or of the people of this state, the attorney or other iierson prosecuting the action may file with the court in which the action is commenced an affidavit, stating cither positively or on information and belief that such bond 180 PUBLIC OFFICERS. 9S3-99»] or obligation was executed by the defendant or one or more of the defendants (designating whom), and made payable to the people of the state, or to the State of California, and that the defendant or defendants have real estate or interest in lands (designating the county or counties in which the same is situated), and that the action is prosecuted for the benefit of the state; and thereupon the clerk receiving such affidavit must certify to the recorder of the county in which such real estate is situated the names of the parties to the action, the name of the court in which the action is pending, and the amount claimed in the complaint, with the date of the commencement of the suit. 984. Record of notice of action. Sec; 984. Upon receiving siich certificate the county recorder must indorse upon it the time of its reception, and such certificate must be filed and recorded in the same manner as notices of the pendency of an action afi^ecting real estate; and any judgment recovered in such action is a lien upon all real estate situated in any county in which such certificate is so filed belonging to the defendant, or to one or more of such defendants, for the amount that the owner thereof is or may be liable upon the judgment, from the filing of the certificate; and the fees due the clerk and recorder for the services required are a charge against the county where the suit is brought, to be recovered like other costs. 985. Bonds of deputies, clerks, etc. Sec. 985. Every officer or body appointing a deputy, clerk, or subordinate officer may require an official bond to be given by the person appointed and may fix the amount thereof. 986. Official bond of county clerk, loliere filed. Sec 986. The official bond of the county clerk shall, after being recorded, be filed in the office of the county treasurer, and the safe keeping of the same is hereby made the duty of the county treasurer. [New section, approved 3Iarcli 27, 1874; Amendments 1873-4, 73; took effect sixtieth day after passage. AETICLE X. RESIGNATIONS, VACANCIES, AND THE MODE OF SUPPLYING THEM. 995. Resignations, to whom made. Sec 995. Resignations must be in writing, and made as follows: 1. By the governor and lieutenant-governor, to the legislature, if it is in session; and if not, then to the secretary of state; 2. By all officers commissioned by the governor, to the governor; 3. By senators and members of the assembly, to the presiding officers of their res}5ective houses, who must immediately transmit the same to the governor; 4. By all county and township officers not commissioned by the governor, to the clerk of the board of supervisors of their respective counties; 5. By all other apj^ointed officers, to the body or officer that appointed them. C. In all cases not otherwise provided for, by filing the resignation in the office of the secretary of state. 996. Vacancies, Jiow they occur. Sec 996. An office becomes vacant on the happening of either of the follow- ing events before the expiration of the term : 1. The death of the incumbent; 2. His insanity, found upon a commission of lunacy issued to determine the fact; 3. His resignation; 4. His removal from office; 181 99G-1003 POLITICAL CODE. 5. His ceasing- to be an inhabitant of the state, or if the o£Eice be local, of the district, county, city, or township for which he was chosen or appointed, or within which the duties of his office are required to be discharg'ed; 6. His absence from the state without permission of the legislature beyond the period allow^ed by law; 7. His ceasing to discharge the duties of his office for the period of three con- secutive months, except when prevented by sickness, or when absent from the state by permission of the legislature; 8. His conviction of a felony, or of any offense involving a' violation of his official duties; 9. His refusal or neglect to file his official oath or bond wdthin the time prescribed ; 10. The decision of a competent tribunal declaring void his election or appointment. 997. Notice of removal, by and to ichom given. Sec. 997. "Whenever an officer is removed, declared insane, or convicted of a felony or offense involving a violation of his official duty, or whenever his election or appointment is declared void, the body, judge, or officer before whom the proceedings were had, must give notice thereof to the officer empowered to fill the vacancy. 998. Vacancies in legislature, how filled. Sec. 998. Whenever a vacancy occurs in either house of the legislature the governor must at once issue a writ of election to fill such vacancy. 999. Vacancies, how filed ivhen not otherioise provided for. Sec. 999. When any office becomes vacant, and no mode is provided by law for filling such vacancy, the governor must fill such vacancy by granting a com- mission, to expire at the end of the next session of the legislature or at the next election by the people. 1000. Vacancies occurring during session of legislature. Sec. 1000. Vacancies occurring in office during the recess of the legislature, the appointment to which is vested in the governor and senate, or in the legis- lature, must be filled by apj^ointment made by the governor; but the person so appointed can only hold the office until the adjournment of the next session of the legislature. 1001. Vacancies in certain state offices, how) filled. Sec. 1001. A vacancy in the office of either the secretary of state, controller, treasurer, attorney-general, surveyor-general, or clerk of the supreme coui't, must be filled by a person appointed by the governor, who shall hold his office for the balance of the unexpired term. [Amendment, approved April 1, 1876; Amendments 1875-G, 23; took effect sixtieth day after passage.^"^ 1002. Harbor commissioner or stq'yerintendent of public instruction. Sec. 1002. A vacancy in the office of either the suj)erintendent of public instruction or state harbor commissioner must be filled by a person appointed by the governor. 1003. Directors of insane asylum. Sec. 1003. Any person appointed to fill a vacancy in the board of directors of the insane asylum holds only for the unexpired term of his predecessor. (a) Original section: the governor. At the next general election subsequent Sec. 101)1. A vacancy in the office of either the secre- to the occurrence of the vacancy a successor must be tary of state, controller, treasurer, attomey-gejieral, elected, who must qualify and enter upon the duties of fiurveyor-gencral. state printer, clerk of the supreme his office on the first Monday in December next after court,' or state harbor commissioner, electi-d by tlie his election, and who holds his office for the balance of state at large, must be filled by a person appointed by the unexpired term. 182 PUBLIC OFFICEES. 1004-1031 1004. Poiver and duty of officers filling unexpired terms. Sec. 1004. Any person elected or ajDpointed to fill a vacancy, after filing his official oath and bond, possesses all the rights and powers and is subject to all the liabilities, duties, and obligations of the officer whose vacancy he fills. AKTICLE XI. PROCEEDINGS TO COMPEL THE DELIVERY OF BOOKS AND PAPERS BY OFFICERS TO THEIR SUCCESSORS. 1014. Possession of books and papers. Sec 1014. Every public officer is entitled to the possession of all books and papers pertaining to his office, or in the custody of a former incumbent by virtue of his office, 1015. Proceedings to compel delivery of. Sec 1015. If any person, whether a former incumbent or another person, refuse or neglect to deliver to the actual incumbent any such books or papers, such actual incumbent may apjoly by petition to any court of record sitting in the county where the person so refusing or neglecting resides, or to any judge of the district or county court residing therein, and the court or officer applied to must proceed in a summary way, after notice to the adverse party, to hear the allegations and proof of the parties, and to order any such books or papers to be delivered to the petitioners. 1016. Attachment and ivarrant to enforce. Sec 1016. The execution of the order and the delivery of the books and papers may be enforced by attachment as for a witness, and also, at the request of the petitioner, by a warrant directed to the sheriff or a constable of the county, commanding him to search for such books and papers, and to take and deliver them to the petitioner. AKTICLE XII. MISCELLANEOUS PROVISIONS. 1026. Seals of executive officers. Sec 1026. Except where otherwise specially provided by law, the seals of office of the various executive officers ai'e those in use by such officers at the time this code takes effect, and each of such officers must at once file a description and impression of such seal in the office of the secretary of state. 1027. Great seal. Sec 1027. The great seal of the state is the one in use at the time of the adop- tion of this code. 1028. Executive and judicial officers may administer oaths. Sec 1028. Every executive and judicial officer may administer and certify oaths. 1029. Salaries of officers. Sec 1029. Unless otherwise provided by law, the salaries of officers must be paid out of the general fund in the state treasury, monthly, on the last day of each month. 1030. Office hours. Sec 1030. Unless otherwise provided by law, everj^ officer must keep his office open for the transaction of business from ten o'clock a. m. until four o'clock p. M. each day, excej^t uj)on holidays. 1031. Signature of officers acting ex officio. Sec. 1031. When an officer discharges ex officio the duties of another office 183 1031-1041 POLITICAL CODE. than that to which he is elected or ai^poiuted, his official signature and attesta- tions must be in the name of the office the duties of which he discharges. 1032. Records open to public inspection, except in divorce. Sec. 1032. The public records and other matters in the office of an}' officer, are at all times, during office hours, ojien to the inspection of any citizen of this state. In all actions for divorce, the pleadings, and the testimony taken and filed in said actions, shall not be by the clerk with whom the same is filed, or the referee before whom the testimony is taken, made public, nor shall the same be allowed to be inspected by any person except the parties that may be inter- ested, or the attorneys to the action, or by an order of the court in which the action is pending; a copy of said order must be filed with the clerk. In cases of attachment, the clerk of the court with whom the comjjlaint is filed shall not make public the fact of the filing of such complaint, or of the issuing of such attachment, until after the filing of return of service of attachment. {Amend- ment, approved March 30, 1874; Amendments 1873-4, 14; took effect July 6, 1874.^'^ TITLE 11. ®f (flections. Chapter I. General Provisions relating to Elections 1041 II. Qualifications and Disabilities of Electors 1083 III. Eegistration of Electors 1094 IV. Election Precincts 1127 V. Boards of Election 1142 VI. Opening and Closing the Polls 1160 VII. Poll Lists 1174 VIII. Election Tickets and Ballots 1185 IX. Voting and Challenges 1224 X. Canvassing and Returning the Vote 1252 XI. Canvass of Eeturns; Declaration of Result; Commissions AND Certificates of Election 1278 XII. Elections for Electors of President and Vice-President . . 1307 XIII. Elections for Members of Congress 1332 XIV. Primary Elections 1357 CHAPTER I. GENEBAL PROVISIONS RELATING TO ELECTIONS. Article I. Time of Holding Elections lOil II. EiiKCbrioN Pkoclamations 1053 III. Miscellaneous Provisions 1066 ARTICLE I. time of holding elections. 1041. General election, when to be held. Sec. 1041. There must be held throughout the state, on the first AVednesday in September, in the year eighteen hundred and seventy-three, and in every second year thereafter, and also on the Tuesday next after the first Monday of November in each bissextile or leaj) ypar, an election to be known as the gen- eral election. (a) The original Bection consisted of the first sentence alone. 184 ELECTIONS. 1042-1067 1042. Judicial eleclion, when to he held. Sec. 1042. There must be held throughout the state, on the third Wednesday in October, in the year eighteen hundred and seventy-three, and in every second year thereafter, an election to be known as the judicial election. 1043. Si^ecial elections^ when to he held. Sec. 1043. Special elections are such as are held to suj^ply vacancies in any office, and are held at such times as may be designated by the proper board or officer. ARTICLE 11. ELECTION PROCLAMATIONS. 1053. Election proclamations hy governor. Sec 1053. At least thirty days before each general or judicial election, and whenever he orders a sj^ecial election, the governor must issue an election >^jroclamation, under his hand and the great seal of the state, and transmit copies thereof to the board of supervisors of the counties in which such elec- tions are to be held. 1054. Governor' s proclamation, what to contain. Sec. 1054. Such proclamation must contain: 1. A statement of the time of election, and of the offices to be filled; 2. An ofi'er of rewards in the following form: "And I do hereby offer a reward of one hundred dollars for the arrest and conviction of any and every person violating any of the provisions of Title IV, Part I, of the Penal Code; such rewards to be paid until the total amount hereafter expended for the purpose reaches the sum of ten thousand dollars." [See post, 13,041.] 1055. Supervisors must puhlish proclamation, etc. Sec. 1055. The board of supervisors, uj)on receipt of such proclamation, may in their discretion cause a copy of the same to be published in some news- paper printed in the county (if any), and to be posted at each place of election, at least ten days before the election, or may cause written or printed notices of the election to be posted at each election precinct at least ten days before the election. [Amendment, approved Mai-ch 15, 1876; Amendments 1875-6, 24; look effect from passage.''^'' 1056. Election proclamations hy supervisors. Sec. 1056. Whenever a special election is ordered by the board of sujjer- visors, they must issue an election pi'oclamation, containing the statement provided for in subdivision 1 of section 1054, and must publish and post it in the same manner as proclamations issued by the governor. ARTICLE III. miscellaneous provisions. 1066. Plurality to elect. ^ Sec. 1066. The person receiving at any election the highest ntimber of votes for any office to be filled at such election is elected thereto. 1067. Proceedings on tie vote other than for governor or lieutenant-governor. Sec. 1067. If at any election, escej)t that for governor or lieutenant-governor, two or more persons receive an equal and the highest .number of votes, there is no choice, and a special election to fill such office n^ust be ordered by the proper board or officer. [a] Original section: Code, to be published in gome newspaper printed in Sec. 1055. The board of supervisors, upon receipt of the county (if any), and to be posted at each place of such proclamation, must cause a copy of the same, election, at least ten days before the election. together with a copy of Title IV, Part I, of the Penal 185 10G8-1096 POLITICAL CODE. 1068. Same, on tie vote for governor or lieutenant-governor. Sec. 1068. In case any two or more persons have an equal and highest num- ber of votes for either governor or lieutenant-governor, the legislature must, by joint vote of both houses, choose one of the persons to fill such office. 1069. Electors privileged from arrest, when. Sec. 1069. Electors are privileged from arrest, exeejit for an indictable ofi'ense, during their attendance on the election, and in going to and returning from the same. 1070. Electors exempt from militia duty, tvhen. Sec. 1070. No elector is obliged to perform militia duty on the day of election, except in time of war or public danger. 1071. No fees for certificate of registration. Sec. 1071. No fees must be charged for registration or certificates thereof. 1072. Compensation of officers of election. Sec. 1072. The compensation of members of boards of election and clerks must be fixed and audited by the board of supervisors, and paid out of the county treasury. 1073. Supervisors to have blanks prepared. Sec. 1073. The necessary printed blanks for poll lists, tally lists, lists of voters, oath, and returns, together wdth envelopes in which to inclose returns, must be furnished by the board of supei'\'isors to the officers of each election precinct at the exjiense of the county. CHAPTER II. QUALIFICATIONS AND DISABILITIES OP ELECTORS. 1083. Qualifications of voter. Sec. 1083. Every male citizen of the United States, who shall have been a resident of the state six months next preceding the election, and of the precinct in which he claims his vote thirty days, and whose name is enrolled on the great register of such county, is a qualified elector thereof. 1084. Certain citizens not entitled to vote. Sec. 1084. No idiot or insane person, or person convicted of any infamous crime, is entitled to the privilege of an elector. CHAPTER III. REGISTRATION OF ELECTORS. 1094. Great register to he kept. Sec. 1094. There must be kept in the office of the county clerk of each county a gi-eat register. 1095. Names of electors to he entered. Sec. 1095. In the great register the clerk must, as hereinafter provided, enter the names of the qualified electors of the county whose names are not already thereon. 1096. Substance of entry. Sec. 1096. Such entry must show: 1. The name, at length; 2. The age, omitting fractions of years; 3. The country of the nativity; 4. The place of residence (giving tlie ward or precinct); 180 ELECTIONS. lOOG-1102 5. If naturalized, the time and place of naturalization; and, 6. The date of the entry; — Of each person. Each name must he numbered in the order of its entry. 1097. Bides governing entry. Sec. 1097. No person's name must be entered by the clerk, unless: 1. Upon a certificate of registration in another county, showing that such reg- istration has been canceled, and upon proof, by the affidavit of the party, that he is an elector of the county in which he seeks to be registered; 2. Upon the returns of the assessor of the county; 3. If a naturalized citizen, upon the production of his certificate of naturali- zation, or upon his own affidavit that it is lost or out of his possession, which affidavit must state the place of his nativity, and the time and place of his nat- uralization, together with his affidavit that he has resided in the United States for five years, and in this state for six months next preceding the time of appli- cation, and that he is an elector of the county; 4. If born in a foreign country, ujDon his affidavit that he became a citizen of the United States by virtue of the naturalization of his father, whilst he was residing in the United States, and under the age of twenty-one years, and that he is an elector of the county; 5. Upon the production and filing of a certified copy of the judgment of a district court directing such entry to be made; 6. In other cases, upon the affidavit of the party that he is an elector of the county; 7. In every case, the affidavit of the party must show all the facts required to be stated in the entry on the register, except the date and number of the entry. [Amendment, approved March 30, 1874; Amendments 1873-4, 15; took effect July 6, 1874. ^"^ 1098. Assessor's roll of electors. Sec. 1098. The assessor of each county must keep a roll of electors, on which, and upon like proof as is required for entry upon the great register, he must enroll the name of any elector of the county making application to him for that purj)ose. 1099. What enrollment must show. Sec. 1099. Such enrollment must show the same facts as are required to be shown by the entry upon the great register. 1100. Duty of clerk or assessor relative to certain proof s produced before him. Sec. 1100. The clerk or assessor must, upon eveiy certificate of naturaliza- tion presented to him as evidence of citizenship, indorse and subscribe a state- ment of the time of j)resentation and of his action thereon. 1101. Assessor must make monthly returns of his enrollment. Sec. 1101. At the end of every month the assessor must return to the county clerk a certified copy of all entries made uj)on his roll of electors during such month, and all affidavits made for the purpose of procuring such enrollment. 1102. Duty of clerk upon receipt of the return. Sec. 1102. Upon the receipt of such return, the clerk must at once enter (a) The original Bection differed iu the third and he states he became a citizen of the United States by fourlh subdivisions, -which were as follows: virtue of the naturalization of his father whilst he 3. If a naturalized citizen, iipou the production of was residing in the United States, and under the age of his certificate of naturalization, or upon his own affi- twent}--one years, upon the production of a certified davit of its loss, together with the affidavit of a regis- copy of his father's certificate of naturalization, or tered citizen to the effect that the applicant has resided upon such proof of residence and reputed citizenship in the United States for five years and in this state for as is required by the preceding subdi\'ision, and upon Bix months next preceding the time of application, and proof by the affidavit of the party that he is an elector is reputed to be a citizen of the United States, and that of the county. deponent believes him to be, and proof by the affidavit In the seventh subdivision the original section had of the party that he is an elector of thecounty; the word " shows" instead of "must show." 4. If born in a foreign country, but by his affidavit 187 1102-1108 POLITICAL CODE. .upon the great register the names contained and the statements made in such return. 1103. Affidavits must he filed in clerk's office. Sec. 1103. The clerk must file and preserve all affidavits returned to him by the assessor or used before him for the purpose of obtaining registration. 1104. Persons not to be registered in diffierejit counties at same time. Sec. 1104. No jierson must cause himself to be registered or enrolled in one county Avhen his registration in another remains uncanceled. 1105. Cancellation of entry. Sec. 1105. There must be left opposite each name in the great register a blank for cancellation. Cancellation is made by writing in such blank the word " Canceled," and a statement of the reasons therefor. 1106. When entry must be canceled. Sec. hog. The clerk must cancel the entr'y in the following cases: 1. At the request of the party registered; 2. When he knows of the death or of the removal of the person registered; 3. "When the insanity of the person registered is legally established; 4. Upon the production of a certified copy of a judgment of felonj^ in full force against the person registered, or upon information of such conviction, ob- tained as hereinafter provided; 5. Upon the production of a certified copy of a judgment directing the can- cellation to be made; 6. Upon the certificate of the board of election of any precinct sent uj) with the election returns, stating the death or removal, wdthin their own knowledge, of person registered; 7. When it appears, by the returns made by the board and clerks of election, that the respective party did not vote during the next preceding three years at any general or judicial election; 8. The clerk shall cancel uj^on the great register every name found thereon which is also found upon the register of deaths, provided for in section three thousand and seventy -nine of this code; 9. Every judge before whom proceedings Avere had, which result in any male person being declared incapable of taking care of himself and managing his property, and for whom a guardian of his person and estate is accordingly ap- I^ointed, or which result in such person being committed to a state insane asylum, as an insane person, shall file with the county clerk a certificate of that fact, and thereupon the clerk shall cancel the name of such person upon the great register, if found thereon; 10. The county clerk shall, also, in the first Aveek of July in each year, examine the records of the courts having jurisdiction in cases of felony, wdthin his county, and cancel upon the great register the names of all persons appear- ing thereon who shall have been convicted of felony in any of such courts, and which conviction shall have been carried into efiect. [Amendment, ajJiiroved March 30, 1874; Amendments 1873-4, 16; took effect July 0, 1874.'''> 1107. Clerk must give certificate of registration. Sec 1107. Upon the application of the party in person or in writing, the clerk must give him or his agent a certified copy of the entries upon the great register relating to such jDarty. 1108. Persons refused registration may proceed by action. Sec. 1108. If the clerk refuses to enter the name of any qualified elector of (a) The original section did not have any one of the fourth it did not have any of the -words after the word seventh, eighth, ninth or tenth subdivisions. In the " registered." 188 ELECTIONS- 1108-1113 the county upon the great register, such elector may proceed by action in the district court to compel such entry. 1109. Amj person may proceed by action (a have registration canceled. Sec, 1109. Any person may proceed by action in the district court to compel the clerk to cancel any entry made on the great register illegally, or that ought to be canceled by reason of facts that have occurred subsequent to the time of such entry; but if the person whose name is sought to be canceled be not a party to the action, the court may order him to be made a party defendant. [Amendment, approved March 30, 1874; Amendments 1873-4, 17; took effect July C, 1874.'"' 1110. Parties plaintiff to such actions. Sec. 1110. In an action under the authority of section 1108 as many pei'soiis may join as plaintiffs as have causes of action. 1111. Parties defendant. Sec 1111. In an action under the authority of section 1109 the clerk and as many persons as there are causes of action against may be joined as defendants. 1112. Costs, luhen recoverable against clerk. Sec 1112. Costs cannot be recovered against the clerk in any action under the authority of this chapter unless it is alleged in the complaint, and estab- lished on the trial, that the clerk knowingly and willfully violated a plain duty. 1113. Clerk to make copy of great register. Sec. 1113. Before the fifth day of August in each year in which there shall be a general or presidential election, each county clerk must make a copy of the uncanceled entries existing on the great register on the preceding first day of August. In lieu of such copy, for the city and county of San Francisco, the county clerk must, from the poll list of the general and judicial elections, held in September and October, eighteen hundred and seventy-three, and from sim- ilar poll lists of the general and judicial elections held in ever}^ second year thereafter, make out ward registers, one for each ward in said city and county, and upon each such ward register he must enter the names of the qualified electors of the ward appearing on the last general and judicial poll lists of the ward, alphabetically arranged, together with the entries respectively appearing on the great register opposite such names. He shall not enter the name of the same person on more than one ward register. He must, however, enter upon the proper ward register, the name of any person, who, being duly sworn, shall make satisfactory proof that he is an elector of such ward, and that his name is uncanceled on the great register of said city and county. He must, upon satis- factory proof, obtained in like manner, transfer any name from one ward reg- ister to another, at the same time canceling the name on the ward register from which the transfer is made, noting such transfer on each such ward register, opposite the name. For the purposes of registration and prei)aration of ward registers, and coj)ies thereof, required by law, the county clerk mvist employ such assistants, and for such times and at such compensation as shall from time to time be authorized by the board of supervisors. All fees received for regis- tration and transfers must be paid into the treasury of the city and county, and out of such treasury must be paid the compensation of such assistants, and all the necessary expenses of registration, preparation of registers, and of trans- fers, upon the proper orders of the board of supervisors. The board of sujDer- visors of any couurty may, by order, provide for the preparation, printing and distribution of township registers for each township, instead of copies of the (a) The original section did not have the last clause commencing with the words " but if the ijerson." 189 1113-lllG POLITICAL CODE. great register, in the same manner as is herein above provided respecting ward registers in the city and county of San Francisco. When so ordered, the j^ro- visions of law applicable to the city and county of San Francisco, in respect to the preparation, correction, issue, distribution, posting, use, and return of ward registers, sball api:)ly to such county, the word " township" being sub- stituted for " ward " for that purpose, wherever it occurs; except that the num- ber of additional copies to be printed of such registers shall not exceed fifty for each one thousand votes cast in the respective townships at the next preced- ing election. The board of supervisors shall fix the compensation of the county clerk for his services in preparing the township registers, which shall be paid out of the county treasury. Such order may be repealed and re-enacted as often as the board of supervisors may deem it expedient to do so. [Amend- ment, approved March 30, 1874; Amendments 1873-4, 17; took effect July 6, 1874.'=') 1114. Names must be arranged alphabeficalhj and numbered. Sec. 1114. In such copy and registers the names must be arranged alpha- betically, according to surnames, and must be numbered consecutively, from the first to the last name, inclusive. [Amendment, approved 3Iarch 30, 1874; Amendments 1873-4, 19; took effect July G, 1874. '"> 1115. Great register must be printed. Sec. 1115. Within fifteen days after making such lists, the clerk must have printed a sufiicient number of copies thereof to supply each election precinct in the county with not less than ten copies thereof, and fifty additional for every one thousand votes cast in the county at the next preceding general elec- tion, except that in the city and county of San Francisco the county clerk must have printed a sufficient number of copies of each ward register to supjily two hundred and fifty copies thereof for the first one thousand votes, or frac- tion thereof, cast in the \vard at the next preceding general election, and fifty additional copies for each additional one thousand votes, or fraction thereof above five hundred; but in all the counties of this state, other than those of the first class, as classified by this code, the clerk of each of such counties, if the board of sujDervisors, in their discretion, so order, must, if there is a sufficient number of the register last printed on hand to provide not less than four copies for each precinct in such county, cancel the names of all persons thereon required to be canceled, and furnish the same to each precinct, together with the same number of copies of a supplement containing the uncanceled entries made upon the great register subsequent to the last publication thereof. [Amendment, ap- proved March 24, 187G; Amendments 1875-6, 24; took effect on passaged 1116. Printed copies, hoiv distributed. Sec. IIIG. The clerk must, as soon as such copies of the great register, or ward, or township registers are printed: 1. Post one copy in some public place in the court-house. 2. Deliver, upon demand, one copy to each county and township officer in the county. 3. Transmit and cause to be delivered not less than ten copies to each board of election in the county; but in cases where ward registers are printed, ten (a) Original sfiction: (c) The original srotion consisted only of the first Sec. ni:J. Before tbe fifth day of August, In theyear clause down to und including the words " next preced- eighteea hundred and seventy-three, and in every sec- ing general election." * ond year thereafter, each county clerk must make out It was previously amended by act of March 30, 1874 a copy of the uncanceled entries existing on the Great (Amendments 1873-1, 19) so as to read like the text with Eegister on the preceding first day of August. the exception of the last clause commencing with the {h) The original section did not have the words " and words " but in all the counties." registers." 190 ELECTIONS. 1116-1130 copies shall be delivered to each board of election in the respective wards, and one copy of all the registers to each board of election in the county, 4. Preserve five copies in the office, for the inspection of the public. 5. Transmit to the State Librar}^ Mercantile Library, Mechanics' Institute, and Odd Fellows' Library, of San Francisco, one copy each. G. Deliver one copy to each elector of the county or respective ward, applying therefor, until the remainder of the edition printed is exhausted; provided, that nothing in this section, except the first, third, and fourth subdivisions thereof, shall apply to counties other ^han of the first class. [Amendment, approved Ilarcli 24, 187G; Amendments 1875-6,21; took effect on passage}^'' 1117. Certified copy, prima facie evidence. Sec. 1117. A certified copy of an uncanceled entry upon the great register, is prima facie evidence that the person named in the entry is an elector of the county. [Amendment, appr-oved March 30, 1874; Amendments 1873-4, 20; took effect July 6, 1874.^''' An Act to compel the county clerk of the city and county of San Francisco to keep open his office upon all election clays. Approved March 7, 1876; 1875-6, 142. Clerk to keep office open. Section 1. The county clerk of the city and county of San Francisco shall keep his office open continuously upon all election days from sunrise until six o'clock and thirty minutes of the evening of the same day, for the sole and only purpose of registering voters, and giving voters certificates of registration and transfers to the wards they live in. Sec 2. This act shall take effect from and after its passage. CHAPTEE IV. ELECTION PRECINCTS. 1127. Supervisors to establish election precincts. Sec. 1127. The board of supervisors of each county must establish a conTe- nient number of election precincts therein. 1128. Boundaries to be defined. Sec. 1128. In the order establishing precincts the boundaries thereof must be defined. 1129. Board may alter, etc., precincts. Sec 1129. The board may from time to time change the boundaries of, create new, or consolidate established precincts. 1130. Limitations on powers given herein. Sec 1130. The following limitations are imposed upon the powers given the supervisors in this chapter: 1. No precinct must be so established as to embrace more than one township, nor parts of two or more townships, nor in such manner that its exterior limits cross the exterior boundaries of any township, incorporated town, or city, or any ward, district, or other territorial subdivision for which local officers are to be elected, except a school or road district; (a) The original section did not have the words "of applying therefor until the remainder of the edition wie Great Kegister, or ward, or township registers." printed is exhausted. The third, fifth and sixth subdivisions were as follows; It was previously amended by act of March 30, 187-i 3. Transmit and cause to be delivered not less than (Amendments 1S73-4, 20) so as to read like the text with ten copies to each election board in the county; the exception that it did not have the proviso in the 5. Transmit to the State library and Mercantile sixth subdivision. library of San Francisco one copy each; (b) The original section had the word "primary" 6. Deliver one copy to each elector' of the county Instead of " prima facie." 1130-1144 POLITICAL CODE. 2. No precinct must be established, nor must the boundaries of one already established be altered, within thirty days next preceding a general or judicial election. 1131. Board to designate place for holding election, and offices to he filled. Sec. 1131. The board must, at least fifteen days prior to an election, issue its order appointing boards of election, designating the house or place within the precinct where the election must be held, and the oifices to be filled, naming and numbering, in numerical order, commencing with number one, the offices to be filled, unexpired terms being lastly designated. [Amendment, approved March 30, 1874; Amendments 1873-4, 21; took effect July 6, 1874.'*^ 1132. When polling places not designated by supervisors. Sec. 1132. If the board fail to designate the house or place for holding the election, or if it cannot be held at the house or place designated, the justices of the peace residing in the precinct, must meet two days before the election, and by an order, under their hand (copies of which they must at once post in three public places in the precinct), designate the house or place. In the city and county of San Francisco, any three of the justices of the peace may discharge the duties imposed by this section, at least eighteen hours prior to the opening of the polls. [Amendment, approved March 30, 1874; Amendments 1873-4, 21; took effect July 6, 1874.'"^ CHAPTER y. BOAEDS OF ELECTION. 1142. Boards of election, how appointed. Sec. 1142. When an election is ordered, the board of supervisors must ap- point, for each precinct, from the electors thereof, one inspector and two judges, who constitute a board of election for such precinct; and in the city and county of San Francisco the board of supervisors must also, j)rior to the election day, appoint for each precinct, from the electors thereof, an additional inspector and tw^o additional judges, who, with the original inspector and judges, shall canvass the votes for such precinct, and who must be present at the closing of the polls, otherwise the board of election must appoint the additional insi^ector and judges, or supply the j)lace of an absent member thereof. The original and additional inspectors and judges shall thenceforth constitute the board of election, the members relieving each other in the duties of canvassing the ballots, which may be conducted by at least half of the whole number; but the final certificates shall be signed by a majority of the whole. [Amendment, approved 2Iarch oQ , 1874; Amendments 1873-4, 21; took effect July 6, 1874.''' 1143. Judges not to he of same political party . Sec. 1143. The judges appointed must not be members of the same political part^^ 1144. Failure to appoint hoard of election. Sec. 1144. If the board of siipervisors fail to appoint the board of election, or the members ai:)pointed do not attend at the oi)ening of the polls on the morn- ing of the election, the electors of the precinct present at that hour may appoint (a) Original Bection : fence alone; but used the words "residing therein" Sec. liai. The board nrniRt, in its order appointing instead of "residing in the precinct." boards of election, des^lguate the house or place within (c) The original sentence consisted only of the flrat the precinct where the election aiust be held. clause down to and including the words " a board of (b) The original section consisted of the first sen- election for such precinct." 192 ELECTIONS. 1144-llGO the board, or supply the place of an absent member thereof. [Amendmeyit , approved March 30, 1874; Amendments 1873-4, 22j took effect July G, 1874.^''> 1145. Inspectors of election, their powers. Sec. 1145. The inspector is chairman of the election board, and may: 1. Administer all oaths required in the progress of an election; 2. Api^oint judges and clerks, if, during the progress of the election, auy judge or clerk ceases to act. 1146. Judges and clerks may administer oaths. Sec. 1146. Any member of the board, or either clerk thereof, may administer and certify oaths required to be administered during the progress of an election. U47. Clerks. Sec. 1147. The board of election for each precinct must, before opening the polls, appoint two persons to act as clerks of election. 1148. Board and clerks to be sivorn. Sec. 1148. Before oj^ening the polls, each member of the board and each clerk must take and subscribe an oath to faithfully perform the duties imposed upon them by law. Any elector of the townshijj may administer and certify such oath. 1149. Board to jyost copies of great register. Sec. 1149. Before opening the polls the board must post, in some separate convenienl: places, easy of access, not less than four printed copies of the gi-eat register of the county, as last printed, except in the city and county of San Francisco, wherein not less than four jDiinted coj)ies of the register of the ward shall be so posted. [Amendment, approved March 30, 1874; Amendments 1873-4, 22; took effect July 6, 1874.<'» 1150. Copies not to he torn nor defaced. Sec. 1150. The copies so posted must be maintained during the whole time of voting, and must not in an}' manner be torn or defaced. [In Napa county copies of the great register are dispensed with except at general or judicial elections provided for by sections 1041 and 1042 of this code, by act of March 20, 1874; 1873-4, 515. In Sacramento county a new great register was ordered to be provided by act of March 30, 1874; 1873-4, 795.] CHAPTER VI. OPENING AND CLOSING THE POLLS. 1160. Time of opening and closing polls. Sec. IIGO. The polls must be opened at one hour after sunrise on the morn- ing of the election, and must be kept open until sunset, when the same must be closed, except in the city and county of San Francisco, wherein the polls must be opened at sunrise and be kept open continuously until six o'clock and thirty minutes of the evening of the same day, when the same shall be closed. [Ameyidment, approved March %, 1876; Amendments 1875-6, 25; took eff^ect from passage.'-"'' (a) Original section: than foiir printed copies of the great register of the Sec. 1144. If the board fails to appoint the election couuty, as last printed. board, or the members appointed do not attend at eight (c) Original section: o'clock .4. M. on the morning of the election, the elect- Sf.c. IIOU The polls must be opened at eight o'clock orsof the precinct present at that hour may appoint on the morning of election, and except as provided in the board, or supply the place of an absent member the next section, must be kept open until sunset, thereof. It was previously amended by act of March 30, 1874 {h) Original section: (Amendments 1873-4, 22) so as to read like the amend- Sec. 1149. Before opening the polls, the board must ment in the text down to the word " except.," post, in some convenient place easy of access, not less 13 193 ..»v^- V if fivon CR^^^ 1161-1174 POLITICAL CODE. [Sec. 1161^*' "was repealed by act ai^proved March 30, 1874; Amendments 1873-4, 23; took effect July 6, 1874.] 1162. Ballot-box to he exhibited. Sec. 11G2. Before receiving any ballots the board must, in tlie presence of any persons assembled at the polling place, open and exhibit and close the ballot-box; and thereafter it must not be removed from the polling place or presence of the bystanders until all the ballots are counted, nor must it be opened until after the jjolls are finally closed. 1163. Proclamation at opening the polls. Sec. 11G3. Before the board receive any ballots they must cause it to be pro- claimed aloud at the place of election that the polls are open. 1164. Proclamation at closing the polls. Sec. 11G4, "When the polls are closed that fact must be proclaimed aloud at the place of election; and after such proclamation no ballots must be received. CHAPTEE VII. POLL LISTS. 1174. Form of poll lists and tally lists. Sec. 1174. The following is the form of poll lists and tally lists to be kept by boards and clerks of election : POLL LISTS Of the election held in the precinct of , in the county of day of , in the year a. d. one thousand eight hundred and , on the A. B., C. D., and E. F., judges, and G. H. and J. K., clerks of said election, -were respectively sworn (or affirmed), as the law directs, previous to their enter- ing on the duties of their respective offices. NUMBER AND NAME OF ELECTORS VOTING. No. Name. No. Name. 1 2 A. B. C. D. 3 4 E. F. G. H. We hereby certify that the number of electors voting at this election amounts to Attest: A. B., G. H., C. D., J. K., E. F., Clerks. Board of Election. TALLY LISTS. Names of persons voted for, and for what office, containing the number of votes given for each candidate : Representative in Congress. Members of the Legislature. Senate. Assoiii1)ly. We hereby certify that A. B. had votes for governor, and C. D. had ur at 194 (a) Orifpnal section: Sec. 1101. The board may close the polls forouc liour at auy time during the day before three o'clock p.M ELECTIONS. . 1174-1191 votes for governor; tliat E. F. had votes for representative in con- gress, etc. ^ A. B., G. H., C. D., J. K., E. F., Clerks. Boartl of Electiou. [Amendment, approved March 30, 1874; Amendments 1873-4, 23; took effect July 6, 1874.'^) 1175. Want of form not to vitiate. Sec. 1175. No list, tally, paper, or certificate returned from any election must be set aside or rejected for want of form, nor on account of its not being strictly in accordance with the directions of this title, if it can be satisfactorily understood. CHAPTER VIII. ELECTION TICKETS AND BALLOTS. 1185. Ticket defined. Sec. 1185. A ticket is a paj)er upon which is written or printed the names of the persons for whom the elector intends to vote, with a designation of the office to which each person so named is intended by him to be chosen. 1186. Ballot defined. Sec. 1186. A ballot is a ticket folded in such a manner that nothing written or printed thereon can be seen. 1187. Tickets must be uniform. Sec. 1187. Every ticket must be of paper uniform in size, color, weight, texture and appearance. 1188. Secretary of state to keep paper for tickets. Sec. 1188. The secretary of state must provide and keep constantly on hand a sufficient quantity of jjaper, uniform in color, weight, texture and appearance, without marks of any kind thereon, to supply the demand for jiaj^er for tickets. 1189. 3Iast supply such paper to any person on application. Sec 1189. He must, upon paj'ment of the cost thereof, and ten per cent. profit, furnish such paper to every person who may apj^ly therefor and who makes and files with him an affidavit that such paper is to be used in providing tickets to be used as ballots at any election next to ensue. 1190. Disposition of money collected from sale of paper. Sec 1190. The sum collected b}^ him for imper so sold must be paid into the state treasury; and ten per cent, of such sum must be credited to a fund to be kept in the treasury', and known as the "Election Reward Fund." 1191. Form of ballot. Sec 1191. No ticket must be used at any election, or circulated on the day of election, unless: 1. It is written or printed on paper furnislied by the secretary of state, or upon paper in every respect precisely like such jDaper; 2. It is five inches in width, or within one fourth of an inch of such width. If not more than fifty offices are designated to be filled, it is twelve inches in length, or within one half of an inch of such length. If more than fifty offices, and not more than eighty offices, are designated to be filled, it is eighteen inches in length, or within one half of an inch of such length. If more than eighty offices are designated to be filled, it is twenty-four Jnches in length, or within one half of an inch of such length; (a) The original section did not have the words " tally lists." 195 I 1191-1195 POLITICAL CODE. 3. If printed, the names of the persons voted for, and the offices designated, are j^rinted in black ink, and in long primer capitals — the names of the offices in small capitals, and of the persons in large capitals — and both without spaces, except between the different words or initials in each line, and between the numbers and initials; •4. If printed, the same margin is left above the printed matter as below it; 5. If printed, the lines are straight, and the matter double leaded with six to pica leads. The word " For" comprises the top line, the margins both sides of it being equal in size. The line after the top one commences with the figure 1, then follows immediately on the same line the name of the first office designated by the board of supervisors in its order, issued under section 1131, and lastly, on the same line, the name of the person voted for. Each subsequent line commences with the figure next in numerical order, and such number is in like manner immediately followed by the name of the office designated, and the l)erson voted for; so that the offices shall appear upon the ticket in the order designated by the board of suj)ervisors, and be numbered in numerical order, commencing with the number one. The numbers are in a straight line from top to bottom, and are within one quarter of an inch of the left-hand edge of the ticket; so that the blank space for substituted names shall be on the right- hand side of the ticket. The ticket shall be substantially in the following- form : For 1. STATE SENATOR, FEANK COWPER. 2. STATE SENATOR, PHILIP ROSS. 3. MEMBER OF ASSEMBLY, A. S. WARDEN. 4. MEMBER OF ASSEMBLY, WASHINGTON SWIFT. 5. MEMBER OF ASSEMBLY, CALEB T. HOLLIDAY. [Amendme^it, approved March 30, 1874; Amendments 1873-4, 24; took effect July 6, 1874.^^^' 1192. BaUofs not to be given to any person within certain limits. Sec. 119^. No ticket or ballot must, on the day of election, be given or delivered to or received by any person, except the inspector, or a judge acting as ins]Dector, within one hundred feet of the polling place. 1193. Tickets and ballots not to be folded or unfolded ivithin certain limits. Sec. 1193. No person must, on the day of election, fold any ticket or unfold any ballot which he intends to use in voting, Avithin one huhdred feet of the polling place. 1194. Contents of tickets or ballots not to be exhibited within certain limits. Sec 1194. No person must, on the day of election, within one hundred feet of the polling place, exhibit to another, in any manner by which the contents thereof may become known, any ticket or ballot which he intends to use in voting. 1195. Persons not to be asked to disclose contents of ticket or ballot. Sec. 1195. No person must, on the day of election, within one hundred feet of the polling place, request another person to exhibit or disclose the contents of any ticket or ballot which such other person intends to use in voting. (a) Original seftion: ■without spaces, except between the different words or Hr.c. 1191. No lieket must be used at any election, or initials in each line; 4. If printed, the same margin is circulated cm the day of election, unlcFB: 1. It is writ- left above tlie priuted matter as below it and the side ten or i>rinted on paper furnished liy the Fecretary of marcins are equal in size; o. If jirlnted, the lines are fctatfc, or upon j-ajifcr in every respect jjrecisely like huch straight, and the luatter sint,'le leaded; (i. If written, paper; 2. It is four inches in width and twelve inches the matter is so written, that no sign thereof appears in length, or within one eighth of an inch of such size; when the paper is folded: and 7. It is fri e from every :{. If printed, the nnines of the persons voted for and marl:, character, or device or thing that would enable the office designated are printed in black ink and in any person to distinguish it by the back, or, when long primer capit:-l8— tho name of the ollico in small folded, from any other legal ticket or ballot, capitals, and of the person in large caijitals— and both 196 ELECTIONS. 1196-1204 1196. Ballots to have no marks on outside. Sec. 1196. No ballot must be used at any election, or circulated on the day of any election, having any mark or thing on the back or outside thereof whereby it might be distinguished from any other ballot legally used on the same day. 1197. Ballot to have no marks by ivhicli it can he told who voted it. Sec. 1197. No ballot or ticket must be used or circulated on the day of any election, having any mark or thing thereon by or from which it can be ascer- tained what persons, or what class of persons, used or voted it, or at what time in the day such ballot was voted or used. [Amendment, approved March 26, 1874; Amendments 1873-4, 73; took effect July 6, 1874."" 1198. Tickets, how to he folded. Sec. 1198. Every ticket, when used as a ballot, must be folded crosswise from the centre, and as follows: If twelve inches long, four times; if eighteen inches long, five times; and if twenty-four inches long, five times, and must be j)ressed flat. [Amendment, approved March '^^,1^1 4:] Amendments 1813-4:, 26; took effect July 6, 1874.^*" 1199. Tickets not to be folded to indicate contents. Sec. 1199. No ticket must be folded in a manner to indicate its contents when used as a ballot. « 1200. Tickets folded together to be rejected. Sec. 1200. If in the ballot-box two tickets are found folded together in the foi-m of a ballot, they must both be rejected. 1201. Ballots not to be rejected for obscurity in name of person or office. Sec. 1201. No ballot or part thereof must be rejected by reason of any obscurity therein in relation to the name of the person voted for or the designa- tion of the office, if the board, from an inspection of the ballot, can determine the j)erson voted for and the office intended . 1202. When more persons designated than to he chosen. Sec. 1202. If the names of more persons are designated on any ballot found in the ballot-box for the same office than are to be chosen for such office, then, except in the cases provided for in the next section, all the names designated for such offices must be rejected, and the fact of such rejection, and the reasons therefor, must at the time of such rejection be noted on the ballot and signed by a majority of the election board. 1203. Written and printed names for the same offce, ivhich to be rejected. Sec. 1203. When upon a ballot found in any ballot-box a printed name and a name written with ink or with pencil appears, and there are not so many persons to be chosen for the office, the printed name must be rejected and the written one counted, and the fact must at the time be noted on the back of the ballot, and such note must be signed by a majority of the election board. 1204. Printed tickets not to be erased but by lead-pencil or ink. Sec. 1204, When upon a ballot found in any ballot-box a name has been erased and another substituted therefor, in any other manner than by the use of a lead-pencil or common writing ink, the substituted name must be rejected, and the name erased, if it can be ascertained from an inspection of the ballot, must be counted, and the fact thereof must be noted upon the ballot, and such note must be signed by a majority of the election board. (a) The original section did not have the words be folded crosswise four times from the centre, so as " used or voted it." to make the ballot three fourths of one inch in size, (6) Original section: and must be pressed flat. Sec. 1198. Every ticket, when used as a ballot, must 197 1205-1225 POLITICAL CODE. 1205. Two votes on same ballot for same person to he counted as one. Sec. 1205. If a ballot is found in any ballot-box containing tlie name of the person and tlie office for which he is designated, or either, two or more times, it must not for that reason be rejected; it must be counted as one ballot. 1206. Marked ballots to be rejected. Sec. 1206. When a ballot found in any ballot-box bears upon the outside thereof any impression, device, color or thing, or is folded in a manner designed to distinguish such ballot from other legal ballots dejDosited therein, it must, with all its contents, be rejected. 1207. Same. Sec. 1207. When a ballot found in any ballot-box bears upon it any impres- sion, device, color or thing, or is folded in a manner intended to designate or impart knowledge of the person who voted such ballot, it must, with all its con- tents, be rejected. 1208. Ballots not conforming to requirements of law. Sec 1208. "When a ballot found in any ballot-box does not conform to the requirements of section 1191, it must, with all its contents, be rejected. 120-9. Rejected ballots to be indorsed. Sec. 1209. Whenever the board of election rejects a ballot, it must at the time of such rejection cause to be made thereon and signed by a majority of the board an indorsement of such rejection and of the causes thereof. 1210. Rejected ballots to be i^reserved. Sec 1210. All rejected ballots must be preserved and returned in the same manner as other ballots. 1211. Ballots not rejected but objected to must be indorsed. Sec. 1211. Whenever a question arises in the board as to the legality of a ballot, or any jjart thereof, and the board decide in favor of the legality, such action, together with a concise statement of the facts that gave rise to the objec- tion, must be indorsed upon the ballot, and signed by a majority of the board. 1212. Ballots not in compliance ivith law not to be received. Sec. 1212. The board must refuse to receive or to allow to be deposited in the ballot-box any ballot offered if it is apparent that it is not in compliance with the provisions of this chajiter. CHAPTEK IX. VOTING AND CHAXLENGES. 1224. Voting, token to commence and continue. Skc 1224. Voting may commence as soon as the polls are oj)ened, and may be continued during all the time the polls remain open. 1225. Manner of voting . Sec 1225. The person offering to vote must hand his ballot to the inspector, or to one of the judges acting as inspector, and announce his name and the number affixed to it on the printed copy of the register, if his name is thereon; provided, that in incorporated towns and cities the said person voting shall also give the name of the street, avenue, or location of his residence, and the num- ber thereof, if it be numbered, or such clear and definite description of the place of such residence as shall definitely fix the same. [Amendment, ajyproved Aprils, 1870; Amendments 181 5~(j, 2G; took effect from passage. ^^^ (a) Original Bfotion: ap inspector, and nmidiinre his name and the number Snr. 122.5. The jxTKon offering to vote niURt hand his allixcd to it on tlie ijrinted copy of the regiBter, If Wb ballot to the iuBpector, or to one of the judges acting name Ib thereon. 198 ELECTIONS. 1226-1232 1226. Announcement of voter's name. Sec. 122G. The inspector, or judge acting as such, must receive the ballot, and before depositing it in the ballot-box, must, in an audible tone of voice, announce the name and register number (if there be one), provided, that in in- cor^Dorated towns and cities the said inspector, or judge acting as such, shall also announce the residence of the person voting, and the same shall be re- corded on the poll list by the poll clerk. [Amendiuent, approved April 3, 187G; Amendments 1875-6, 26; took e§^ect from passage y^ 1227. Putting ballot in box. Sec. 1227. If the name be found on the copy of the great register, or ward register, or if the party produce and file with the board an uncanceled ceiiifi- cate of registration on the great register of the county, and the vote is not re- jected upon a challenge taken, the inspector, or judge acting as such, must, in the presence of the board of election, place the ballot, without being oi^ened or examined, in the ballot-box. [Amendment, approved March 30, 1874; Amend- ments 1873-4, 27; took effect July 6, 1874."'> 1228. Record that person has voted, how kept. Sec. 1228. When the ballot has been placed in the box, one of the judges must write the word " voted" op^DOsite the number of the person on the printed copy of the register; or, if the person voted on a certificate of registration, then upon the face thereof. 1229. List of voters. Sec. 1229. Each clerk must keep a list of jDcrsons voting, and the name of each person who votes must be entered thereon and numbered in the order of voting. 1230. Grounds of challenge. Sec. 1230. A person offering to vote may be orally challenged by any elector of the county, upon either or all of the following grounds: 1. That he is not the jDcrson whose name aj^pears on the register; 2. That he has not resided within the state for six months next preceding the election ; 8. That he has not resided within the precinct for thirty days next preceding the election; 4. That he has before voted that day; 5. That he has been convicted of a felony and has not been pardoned. 1231. Proceedings on challenge for want of identity. Sec. 1231. If the challenge is on the ground that he is not the person whose name appears on the great register, the inspector must tender him the following oath: " You do swear (or affirm) that you are the person whose name is entered on the great register," 1232. Proceedings on challenge for non-residence. Sec. 1232. If the challenge is on the ground that he has not resided in the state for six months next preceding the election, the person challenged must be sworn to answer questions; and after he is sworn the following questions must be propounded to him by the inspector: 1. Have you resided in this state for six months immediately i^receding this election? (a) Original section: the name and register number (if there be one) of the Sec. 1226. The inspector, or judge acting as such, person voting, must receive the ballot, and before depositing it in the (b) The original section did not have the words " or ballot-boi must, in au audible tone of voice, announce ward register." 199 1232-1239 POLITICAL CODE. 2. Have j^ou been absent from this state within the six months immediately- preceding this election? If yes, then: 3. When you left, did you leave for a temporary purpose, with the design of returning, or for the purj^ose of remaining away? 4. Did you while absent regard this state as your home ? 5. Did you while absent vote in any other state? And such other questions as may be necessary to a determination of the chal- lenge. 1233. Same, on challenge for non-residence in precinct. Sec 1233. If the challenge is on the ground that he has not resided in the precinct for thirty days next preceding the election, the person challenged must be sworn to answer questions; and after he is sworn the following questions must be propounded to him by the inspector: 1. When did you last come into this election precinct? 2. "When you came into this jorecinct did you come for a temporary purpose merely, or for the purpose of making it your home? 3. Did you come into this precinct for the purpose of voting here? And such other questions as may be necessary to a determination of the challenge. 1234. Same, on challenge for having before voted. Sec. 1234. If the challenge is on the ground that the person challenged has before voted that day, the inspector must tender to the person challenged this oath: " You do swear (or affirm) that you have not before voted this day." 1235. Same, on ground of conviction of a felony. Sec. 1235. If the challenge is on the ground that the j)erson challenged has been convicted of a felony and has not been pardoned, he must not be ques- tioned; but the fact may be proved by the production of an authenticated copy of the record, or by the oral testimony of two witnesses, and the non-production of a pardon. 1236. Challenges, how determined. . Sec. 1236. Challenges upon the grounds either: 1. That the person challenged is not the person whose name appears on the great register; 2. That the party has before voted on that day; — Are determined in favor of the party challenged by his taking the oath tendered. 1237. Trial of challenge. Sec. 1237. Challenges for causes other than those specified in the preceding section must be tried and determined by the board of election at the time of the challenge. 1238. If person refuses to be sworn, vote to be rejected. Sec. 1238. If any person challenged refuses to take the oaths tendered, or refuses to be sworn and to answer the questions touching the matter of residence, he must not be allowed to vote. 1239. Rules for determining question of residence. Sec 1239. The board of election, in determining the place of residence of any person, must be governed by the following rules, as far as they are api^licable: 1. That place must be considered and held to be the residence of a person in which his habitation is fixed, and to which, whenever he is absent, he has the intention of returning; 200 ELECTIONS. 1239-1243 2. A person must not be held to have gained or lost residence by reason of his presence or absence from a place while employed in the sei-vice of the United States, or of this state, nor while engaged in navigation, nor while a student at any institution of learning, nor while kept in an almshouse, asylum, or prison; 3. A person must not be held, by reason of having moved from one precinct to another, in the same county, within thirty days jDrior to the election, to have lost his residence in the precinct so moved from, provided he was an elector therein on the thirtieth day prior to such election; 4. A person must not be considered to have lost his residence who leaves his home to go into another state, or precinct in this state, for temporary pui-poses merely, with the intention of returning; 5. A i)erson must not be considered to have gained a residence in any pre- cinct into which he comes for temporarj^ purposes merely, without the intention of making such precinct his home; 6. If a j)erson remove to another state with the intention of making it his residence, he loses his residence in this state; 7. If a person remove to another state with the intention of remaining there for an indefinite time, and as a place of present residence, he loses his residence in this state, notwithstanding he entertains an intention of returning at some future period; 8. The place where a man's family resides must be held to be his residence; but if it be a place for temporary establishment for his family, or for transient objects, it is otherwise; 9. If a man have a family fixed in one place, and he does business in another, the former must be considered his place of residence; but any man haAing a family, and who has taken up his abode with the intention of remaining, and whose family does not so reside with him, must be regarded as a resident where he has so taken uj^ his abode; 10. The mere intention to acquire a new residence, mthout the fact of removal, avails nothing; neither does the fact of removal, without the intention. [Amendment, approved March 30, 1874; Amendments 1873-4, 26; took effect July 6, 1874.<''> 1240. Term of residence, how computed. Sec. 1240. The term of residence must be computed by including the day on which the person's residence commenced, and by excluding the day of the election. 1241. Rules must he read, if requested. Sec. 1241. Before administering an oath to a person touching his place of residence, the inspector must, if requested by any person, read to the person challenged the rules prescribed by sections 1238 and 1239. 1242. Proceedings upon determination of challenge. Sec 1242. If the challenge is determined against the person offering to vote, the ballot offered must, without examination, be returned to him; if deter- mined in his favor, the ballot must be deposited in the ballot-box. 1243. List of challenges to he kept. Sec 1243. The board must cause one of the clerks to keep a list, showing: 1. The names of all persons challenged; 2. The grounds of such challenges; 3. The determination of the board upon the challenge. (a) The original section had but nine subdivisions, omitting the one numbered 3. It used the words " elec- tion board " instead of " board of election." 201 1252-1256 POLITICAL CODE. CHAPTEK X. CANYASSING AND RETURNING THE VOTE. 1252. Canvm'x to he public, and ivilhout adjournment. Sec. 1252. A.s soon as the polls are finally closed the judges must immedi- ately i>roceed to canvass the votes given at such election. The canvass must be public, in the presence of bystanders, and must be continued without ad- journment until completed and the result thereof is declared. 1253. Cauvas!i, how commenced. Slc. 1253. The canvass must be commenced by taking out of the box the ballots unopened (excejit so far as to ascertain whether each ballot is single), and counting the same to ascertain whether the number of ballots coiTesponds with the number of names on the list of voters kept by the clerks. In the city and county of San Francisco, at the closing of the jjolls, the inspector must administer to the additional members of the board of canvassers, the oath pre- scribed in section 1148, and likewise to two clerks appointed by such additional members. He must then proceed to take out of the box the ballots, unopened, one at a time, numbering them on the backs in numerical order, commencing with number one, and writing with ink the initials of his own name upon the back of each ballot as taken out. He shall pass each ballot, as soon as thus indorsed, to the additional inspector, who must, in like manner, write thereon the initials of his own name, so that each ballot can be subsequently identified by either or both such inspectors. [Amendment, approved March 30, 1874; Amendments 1873-4, 28; took effect July 6, 1874.'"' 1254. Proceedings where ballots folded together. Shc. 1254. If two or more sej)arate ballots are found so folded together as to present the appearance of a single ballot, they must be laid aside until the count of the ballots is completed; then, if upon a comparison of the count with the numV)er of names of electors on the lists which have been kept by the clerks, it api)ears that the two ballots thus folded together were cast by one elector, they must be rejected. [Amendment, approved March 30, 1874; Amend- ments 1873^, 29; took effect July G, 1874.'^' 1255. ] ' roceedings where too many ballots. Sec. 1255. The ballots must be immediately rejilaced in the box, and if the ballots in the box exceed in number the names on the lists, one of the jiadges must jiublicly, and without looking in the box, draw out therefrom singly, and destroy, unopened, a number of ballots equal to such excess; and the board of election must make a record, upon the poll list, of the number of ballots so drawn and destroyed. In the city and county of San Francisco the numbers apiK-aring on the backs of the ballots so drawn, must likewise be recorded. \Amei)dmn\t, a])proved March 30, 1874; Amendments 1873-4, 29; took effect July G, 1874. ''> 125G. J'roceedings ivhen names and ballots agree. Sec. 125G. Tlie number of l>allots agreeing or being thus made to agree with the nu]iil)er of names on the lists, the lists must be signed by the members of the board and attested by the clerks, and the number of names thereon must be set down in words and figures at the foot of each list, and over the signatures (a) The original Bcctlon coneiKted of the flrHt Ben- exceed In number the names on the lists thoy must be tench tlone. replueed in the box, and one of the judges must pub- (ii) The oriifiniil section had the word " dcHtroyod " li 1265. Clerk to keep ballots unopened. Slc. 12G5. Upon tlie receipt of the packages the clerk must file the one con- taining ballots, and must keep it unopened and unaltered for twelve months, after which time, if there is not a contest commenced in some tribunal ha\-ing jurisdiction about such election, he must burn the package, without opening or examining its contents. 1266. When package containing ballots may be destroyed; ivhen opened. Sec. 1266. If within twelve months there is such a contest commenced, he must keep the package unopened and unaltered until it is finally determined, when he must, as provided in the preceding section, destroy it, unless such package is, by virtue of an order of the tribunal in which the contest is pending, brought and opened before it, to the end that evidence may be had of its contents, in which event the package and contents are in the custody of such tril)unal. 1267. lieturns to be delivered by clerk to superxdsors. Sec 1267. The other package the clerk must produce before the board of supervisors, when it is in session for the j)uri:)Ose of canvassing returns. 1268. Copy of register to be filed in county clerk's office. Sec 1268. As soon as the returns are canvassed the clerk must take the copy of the remaster I'etxu'ned and file it in his office. CHAPTER XI. CANVASS OF RETURNS — DECLARATION- OF RESULT — COMMISSIONS AND CERTIFICATES OF ELECTION. 1278. Mi'cting of supervisors to canvass returns. Si.<'. 1278. The board of supenisors of each 'county, except Humboldt, San Diego and Trinity, must meet at their usual place of meeting on the first Mon- day after each election, to canvass the returns. 1279. Same. Sec 1271). The board of suj^ervisors of the counties excepted must each meet at its usual pla<:e of meeting on the second Monday after each election to can- vass the returns. 1280. Canvass, when to be postponed. Si-c. 1280. If at the time of meeting the returns from each i:)recinct in the county in which i>olls were opened have been received, the board must then and there i)roceed to canvass the returns; but if all the returns have not been re- ceived tlie canvass must be postp(jned from day to day until all of the returns are received, or until six postponements have been had. (a) 0rl«ii>al wctlon: deliver such packages, without their having been Sec. li!t;i. The ineiiiber to whom curb parkagcR are opi.-ued, to the county clerk, delivered uiuat, before the next aucceediug Monday, 204 ELECTIONS, 1281-1288 1£81. Canvases, hoio made. Sec. 1281. The canvass must be made in public, and by opening the returns and estimating the vote of such county or township for each person voted for, and for and against each pi'oposition voted upon at such election, and declare the resitlt thereof. 1282. Sfafemenf. of result to be entered of record. Sec. 1282. The clerk of the board must, as soon as the result is declared, enter on the records of such board a statement of such result, Avhich statement must show: 1. The whole number of votes cast in the county; 2. The names of the persons voted for, and the propositions voted upon; 3. The office to fill which each person was voted for; 4. The number of votes given at each precinct to each of such persons, and for and against each of such propositions; 5. The number of votes given in the county to each of such persons, and for and against each of such propositions, 1283. Declaration of result. Sec. 1283. The board must declare elected the person having the highest number of votes given for each office to be filled by the votes of a single county or subdivision thereof, 1284. Certificates'issued by clerk. Sec. 1284. The county clerk must immediately make out and deliver to such person (except to the person elected county judge) a certificate of election, signed by him, and authenticated with the seal of the county court. 1285. District returns, how made up. Sec. 1285. When there are officers other than representatives in congress voted for, who are chosen by the electors of a district composed of two or more counties, each of the county clerks of the counties composing such district, im- mediately after making out the statement specified in section 1282, must make a certified abstract of so much thereof as relates to the election of such officers. 1286. How transmitted. Sec. 1286. The clerk must seal up such abstract, indorse it " Election Ke- turns," and without delay transmit the same by mail to the county clerk of the county w^hich stands first in alphabetical arrangement in the list of counties composing such district. 1287. Duty of clerk receiving district returns. Sec. 1287. The clerk to whom the election returns of a district are made must, on the twentieth day after such election, or sooner, if returns from all the counties in the district have been received, open in public such returns, and from them and the statement of the vote for such officers in his own county: 1. Make a statement of the vote of the district for such officers, and file the same, together with the returns, in his office; 2. Transmit a certified copy of such statement to the secretary of state; 3. Make out and deliver or transmit by mail to the persons elected a certifi- cate of election (unless it is by law otherwise provided). 1288. State returns, how made. Sec. 1288. "When there has been a judicial election, or when there has been a general or special election for officers chosen by the electors of the state at large, each county clerk, so soon as the statement of the vote of his county is made out and entered upon the records of the board of supervisors, must make a certified abstract of so much thereof as relates to the votes given for persons 205 1288^1307 POLITICAL CODE. for offices to be filletl at such judicial election (except justices of the peace) or at such general or siiecial elections. 1289. Hoxo transmitted. Sec. 1289. The clerk must seal up such abstract, indorse it "Election Returns," and without delay transmit it by mail to the secretary of state. 1290. Duty of secretary of slate relative to. Sec 1290. On the sixtieth day after the day of election, or so soon as the returns have been received from all the counties of the state, if received within that time, the secretary of state must compare and estimate the vote, and make out and file in his office a statement thereof, and transmit a copy of such state- ment to the governor. 1291. Commissions issued by (jovernor. Sec. 1291. Upon receipt of such coj^y the governor must issue commissions to the persons who from it appear to have received the highest number of votes for offices, except that of governor or lieutenant-governor, to be tilled at such election. 1292. Returns of election for governor and lieutenant-governor, liow made. Sec. 1292. When an election has been held to till the office of governor or lieutenant-governor, the clerk of each county, in addition to the abstract made for ti-ansmission to the secretaiy of state, must, as soon as the statement of the vote of his county is made out and entered upon the record^ of the board of supervisors, make two certified abstracts of so much thereof as relates to the vote given for such officers, 1293. Hoxv transmitted. Sec 1293. The clerk must seal up each abstract separately, and indorse thereon " Election Returns for governor and lieutenant-governor." 1294. Same. Sec 1294. He must at once direct one copy to "the sjieaker of the assembly next to meet," address it to Sacramento, California, and deposit it, post paid, in the post-office. 1295. Some. Sec 129.J. The other copy he must direct and address in the same manner, and at once deliver it to a member elect of the legislature or to a senator who holds over; and the person to whom it is so delivered must deliver it to the speaker on or before the second day next after his election. 1296. Canvass of returns of election for governor and lieutenant-governor. Sec. 129G. The returns of election for governor and lieutenant-governor must during the first week of the session be opened, canvassed, and the result declared by the speaker of the assembly in presence of both houses. 1297. Defects inform of returns, ivhen to fje disregarded. Sec 1297. No declaration of the result, commission, or certificate must be ■withheld on account of any defect or informality in the return of any election, if it can with reasonable certainty be ascertained from such return what office is intended, and who is elected thereto. CHAPTEIl XII. ELECTION FOR ELECTORS OF PRESIDENT AND VICE-rRESIDENT. 1307. Electors, when chosen. Sec. 1307. At the general election in each bissextile or leap year, unless by the laws of the United States another time is fixed, and then at such time, there 20G ELECTIONS. 1307-1316 must be chosen by the qualified voters of the state, as many electors of presi- dent and vice-president of the United States as the state is then entitled to. 1308. Returns, how made. Sec. 1808. The clerk of each county, as soon as the statement of the vote of his county at such election is made out and entered on the records of the board of supervisors, must make a certified abstract of so much thereof as relates to the vote given for persons for electors of president and vice-president of the United States. 1309. Eoxo transmitted. Sec. 1309. The clerk must seal up such abstract, indorse it "presidential election returns," and without delay transmit it to the secretary of state by mail or in the manner hereinafter prescribed. 1310. Blessenger, when clerk may employ. Sec. 1310. If the county clerk of any county has reason to believe that the abstract will not in the due course of mail reach the secretary of state before the time fixed by law for canvassing the returns of such election, he may, with the approval of the county judge, employ a person to convey and deliver such abstract to the secretary of state. 1311. Proof of necessity for and approval of appointment of messenger. Sec. 1311. In the event provided for in the preceding section the clerk must make an a£6 davit setting forth the reasons for his belief and the name of the person employed by him, which alfidavit, with the approval of the county judge indorsed thereon, must be given to the person appointed, and by him, with the abstract, must be delivered to the secretary of state. 1312. Compensation of messenger. Sec 1312. The person appointed by the clerk, after he delivers the abstract and statement, is entitled to receive as compensation mileage at the rate of thirty cents a mile from the county seat to the seat of government. His account there- for, certified by the secretary of state, must be audited by the controller and paid out of the general fund in the state treasury, 1313. Duties of secretary of state relative to returns. Sec. 1313. On the last Monday in the month of the election, or as soon as the returns have been received from all the counties in the state, if received be- fore that time, the secretary of state must compare and estimate the votes given for electors, and certify to the governor the names of the proper number of persons having the highest number of votes. 1314. Duty of governor. Sec 1314. The governor must, upon the receipt of such certificate, transmit to each of such persons a certificate of election, and on or before the day of their meeting deliver to the electors a list of the names of electors, and must do all other things required of him in the premises by any act of congress in force at the time. 1315. Meeting of electors. Sec 1315. The electors chosen must assemble at the seat of government on the first Wednesday in December next after their election, at two o'clock in the afternoon. 1316. Vacancies in, how supplied. Sec 1316. In case of the death or absence of any elector chosen, or in case the mimber of electors from any cause be deficient, the electors then present must elect, from the citizens of the state, so many persons as will supply such deficiency. 207 1317-1343 POLITICAL CODE. 1317. Voling by electors, and 7'cturns. Sec. 1317. The electors, when convened, must vote by ballot for one person for jn-esident and one person for vice-president of the United States, one of wliom, at least, is not an inhabitant of this state. 1318. Separate ballots for president and vice-president. Sec. 1318. They must name in their ballots the persons voted for as president, and in distinct ballots the persons voted for as vice-president. 1319. ^fttst make lists ofjyersons voted for. Sec. 1319. They must make distinct lists of all persons voted for as president, and of all persons voted for as vice-president, and of the number of votes given for each. 1320. Besult to be transmitted to president of United States senate. Sec. 1320. They must certify, seal up, and transmit by mail such lists to the seat of government of the United States, directed to the president of the senate. 1321. Compensation of electors. Sec. 13'21. Electors receive the same pay and mileage as is allowed to mem- bers of the assembly. 1322. How audited and paid. Sec 1322. Their accounts therefor, certified by the secretary of state, must be audited by the controller, who must draw his warrants for the same on the treasurer, payable out of the general fund. CHAPTEE XIII. ELECTIONS FOR MEMBERS OF CONGRESS. ARTICLE I. Election for Senatoks 1332 II. Election fob Kepbesextativks 1343 AKTICLE I. ELECTION FOR SENATORS. 1332. Elections for full terms. Sei'. 1332. Elections for senators in congress for full terms must be held at the regular session of the legislature next preceding the commencement of the term to be filled. 1333. Elections to fdl vacancirs. Sec 1333. Elections to fill a vacancy in the term of a United States senator must Ixj lield at the session of the legislature next succeeding the occurrence of such vacancy. ARTICLE II. ELECTIONS FOR REPRESENTATIVES. 1343. When held. Sec 1343. At the general election in the year eighteen hundred and seventy- three, and at tlio general election every two years thereafter, there must be elected, for each congressional district, one representative to the congress of the United States. (There was " An Act to fix the time for holding elections for members of cou- greKH and rejK-al certain acts," adopted on April' 1, 1872; 1871-2, 910. It pro- vidrd !(,r the election of 1872 only. The above section of the code is the general law now in force. ) 208 ELECTIONS. 1344-1360 1344. Returns, how made. Sec. 1844. The clerk of each county, as soon as the statement of the vote of his county at such election is made out and entered on the records of the board of supervisors, must make a certified abstract of so much thereof as relates to the vote given for persons for representatives to congress. 1345. Hoio transmitted. Sec. 1345. The clerk must seal vq) such abstract, indorse it " Congressional Election Returns," and without delay transmit it by mail to the secretary of state. 1346. Duty of secretary of state relative to. Sec. 1346. On the sixtieth day after the day of election, or as soon as the returns have been received from all the counties of the state, if received within that time, the secretary of state must compare and estimate the votes given for such representatives, and certify to the governor the person having the highest number of votes in each congressional district as duly elected. 1347. Certificates issued by governor. Sec 1347. The governor must, upon the receipt of such certificate, transmit to each of such persons a certificate of his election, sealed with the great seal and attested by the secretary of state. CHAPTEE XIY. PRIMARY ELECTIONS. 1357. Resolution to hold primary election under election laws. Sec. 1357. Any committee or body authorized by the rules or customs of a voluntary political association or organization, to call elections of or for such association or organization, for any purpose, may, by resolution adopted at the time of making the call, elect to have such elections conducted in accordance with the rules prescribed in sections 1083, 1084, 1144, 1145, 1146, 1147, 1148, 1162, 1163, 1164, 1174, 1175, 1192, 1193, 1194, 1195, 1196, 1199, 1200, 1201, 1202, 1203, 1224, 1227, 1229, 1230, 1231, 1232, 1233, 1234, 1235, 1236, 1237, 1238, 1239, 1240, 1241, 1242, 1252, 1253, 1254, 1255, 1256, 1257, 1258, 1259 and 1260. [Amendment approved 31arch 26, 1874; Amendments 1873-4, 74; took effect July 6, 1874.'^' 1358. Resolution, form of. Sec. 1358. The resolution must declare: 1. The time and j^lace of holding the election and the hours between which the polls are to be kept open; 2. The names of the persons to constitute the election board; 3. The object of the election; 4. That such election will be held under the provisions of the primary elec- tion law; 5. The time and manner of the publication of notice of such election; 6. The qualifications required for voters in addition to those prescribed by law. 1359. Notice, form of. Sec. 1359. The notice of the election must be signed by the secretary of the committee or body, and must contain a copy of the resolution, and must be published as directed in the resolution. 1360. Challenges. Sec 1360, In addition to the challenges allowed by law, any person offering (a) The original section did not refer to sections 1192, 1193, 1194, 1195, 1196 and 1199. 14 209 13C0-13S5 POLITICAL CODE. to vote at such election may be challenged upon the grounds that be does not possess the other qualiticatiuns prescribed in the resolution, and such challenges must be tried and determined by the board of election, who to that end may administer an oath to such persons, and may ask them any question tending to prove or disprove the challenge. 1361. yo)te but qualifit'il persons to participate. Sec. 13G1. None but persons who possess the qualifications prescribed by law and by the resolution must vote or participate in any of the proceedings at such election. 1362. Betunis, hoiv made. Stc. 1362. After counting the votes and signing the lists the judges must cause the ballots and one copy of the lists to be delivered to the secretary sign- ing the notice of election, and one of the judges must retain the other lists for twenty days after the election. 1363. Certificates to be issued by board of judges. Sec. 1303. The board of election must issue certificates of election to all per- sons who are chosen to fill any position by the vote of one jn-ecinct alone. 1364. Canvass of returns and certificate by committee. Sec 130-4. The committee or body from which emanated the resolution call- ing the election may, under such rules as it adopts, oj)en and canvass the returns and issue certificates to persons chosen to fill positions by the voters of more than one precinct. 1365. What pi-ovisions of laiv applicable to these elections. Sec 1305. All of the provisions of Title IV, Part I of The Penax Code, and all the provisions of the sections referred to in the first section of this chapter, are ajiplicable to elections held under the provisions of this chapter from and after the last i^ublication of the notice mentioned in section 1359. [Title IV, Part I of The Penal Code, will be found post, 13,041.] TITLE III. (fiMsratioiu Chapter I. University of California 1385 II. State Normal School 1487 III. Public Schoois 1517 CHAPTER I. UNIVERSITY OF CALIFORNIA. AKTici.r I. Gkski:al Pbovisions Rklatino to the University 1385 II. E.SKOWMKNT OK THK UniVKUSITY 1415 III. Rkoknth of thk Univkusity 1425 IV. Skcuktahv of thk HoAiiij OF Rkokni s 1449 V. \CADKMIC SkNATK OF THK UnIVKKHITY 1461 VI . UNivEimmr Cai>kth 1473 ARTICLE I. OENERAL provisions relating to the UNrVERSITV. 1335. Object of nnirersily. Sec. 1385. The university of California, located in Alameda county, has for 210 EDUCATION. 1385-1394 its object general instruction and education in all the departments of science, literature, art, industrial and professional pursuits, and special instruction for the professions of agriculture, the mechanic arts, mining, military science, civil engineering, law, medicine, and commerce. 1386. Colleges to be maivtained. Sec. 1386. There must be maintained in the university: 1. A college of letters; 2. A college or colleges of science, including agriculture, mechanics, mining, engineering, chemistry, and such other specialties as the board of regents may determine; 3. College of medicine and law; 4. Such other colleges as the board of regents may establish. [Amendment, approved March 30, 1874; Amendments 1873-4, 31; took effect July 6, 1874.^"> 1387. Scope of college of letters. Sec. 1387. The college of letters must embrace a liberal course of instruction in language, literature, and philosophy. 1388. Course of instruction. Sec. 1388. Each full course of instruction consists of its appropriate studies and courses, to be determined by the board of regents. [Amendment, approved March 30, 1874; Amendments 1873-4, 31; took effect July 6, 1874.^''^ 1389. President of university. Sec. 1389. The president of the university is the executive head of the insti- tution in all its departments, except as herein otherwise provided. 1390. Duties of president. Sec 1390. He must, subject to the board of regents, give general direction to the practical affairs of the several colleges, and in the recess of the board of regents may remove any employee or subordinate officer not a member of any faculty, and supply for the time being any vacancies thus created; and until the regents otherwise direct he is charged with the duties of one of the profes- sorships. 1391. Government and discipline. Sec 1391. The immediate government of the several colleges is intrusted to their respective faculties, each of which must have its own organization, regu- late its own affairs, and may recommend the course of study and the text-books to be used. 1392. Students. Sec 1392. Any resident of California of the age of fourteen years or uj^wards, of approved moral character, may enter himself in the university as a student at large, 'and receive tuition in any branches of instruction at the time when the same are given in their regular course, on such terms as the board of regents may prescribe. 1393. Fees and rates of tuition. Sec 1393. An admission fee and rate of tuition fixed by the board of regents must be required of each pupil, excej)t as herein otherwise pro\'ided. 1394. Free tuition, luhen. Sec 1394. As soon as the income of the university shall permit, admission and tuition must be free to all residents of the state; and the regents must so apportion the representation of students according to population that all por- tions of the state may enjoy equal privileges therein. (a) The original section had the Becond and third (6) Original section: Bubdivisions as follows: Sec. 138«. Each full course of instruction consists of 2. Colleges of law and medicine ; its appropriate studies, and must continue for four 3. Colleges of arts, as follows: of agriculture, mines years, and civil engineering ; and, 211 1395-1403 POLITICAL CODE. 1395. Free scholar sliip. Sec. 1395. If approveil liy the board of regents, scliolarsliips may be estab- lisbeil in the university by any persons for the purpose of private benefaction or of afibrding tuition in any course of the university, free from the ordinary charges, to any scholar in the public schools of the state who may distinguish himself in study, according to the recommendation of his teachers, and who passes the examination required for the grade at which he wishes to enter the university. 1396. Colleges may be affiliated v.-ith university. Si:c. 139G. The board of regents may affiliate with the university any incor- porated college of medicine, law, or other special course of instruction, upon such terms as may be deemed expedient; and such college may retain the con- trol of its own proi^ei'ty, have its own board of txiistees, faculties, and presidents, respectively; and the students of such colleges, recommended by the respective faculties thereof, may receive from the university the degrees of those colleges. 1397. Annual examination for degrees. Slc. 1397. The examinations for degrees must be annual. Students who have jja-ssed not less than a year as residents in any college, academy or school in this state, and who, after examination by the faculty thereof, are recommended by them as proficient candidates for any degree in any regular course of the university, must be examined therefor at the annual examination; and on pass- ing ,such examination may receive the degree and diploma for that course, and rank as graduates. 1398. Annual examination for degrees. Sec 1398. All students of the university who have been residents thereat for not less than one year, and all graduates thereof, may present themselves for (■xuminatiou in any course at the annual examinations, and, on passing such examination, may receive the degree and diploma of that course. [Amendment, opproved March 30, 1874; Amendments 1873-4, 31; took effect July G, 1874.^"' 1399. Votes for conferring degree. Sec. 1399. Ui)on such examinations each professor and instructor of that course may cast one vote, by ballot, upon each application for recommendation t'j the board of regents for a degree. 1400. Degrees to graduates of affiliated colleges. Sec 1400. Graduates of the College of California, and of aiiy incorporated college aflfdiated with the university, may receive the degrees from and rank as ^.Taduates of the university. 1401. Certificati's (f proficiency. Skc 1401. The l)oard of regents may also confer certificates of proficiency in any branch of study upon such students of the university as upon examination are found entitled to the same. 1402. Jjrgrees. Sec. 140li. The proper degree of each college must be conferred at the end of the course upon such students as, having completed the same, are found pro- ficient therein. 1403. Ihgrees in colleges of letters. Sec 1403. The degree of bachelor of arts, and afterwards the degree of mas- ter of arts, in usual course, must 1)e conferred upon the graduates of the college of letters. (a) The orlfrinhl Hntioii had the wordn " in ony courfic " iustcaU of " thireof," and the word " other " before the wurdH " cuumc ut the nunual cxuniinatiouK." 212 EDUCATION. 1404-1415 1404. System of manual labor in connection ivith agricultural college. Sec. 1404. A sj'stem of moderate manual labor must ho establislied in con- nection with the agricultural college, upon its agricultural and ornamental grounds, for practical education in agriculture and landscape gardening. 1405. Sectarian, etc., tests irrohibifed. Sec. 1405. No sectarian, political, or partisan test must ever be. allowed or exercised in the appointment of regents, or in the election of professors, teach- ers, or other officers of the university, or in the admission of students thereto, or for any jDurpose whatsoever; nor must the majority of the board of regents be of any one religious sect or of no religious belief. An Act to prohibit the sale of intoxicating liquors within two miles of the university of California. Appi-ovea December 23, 1873; 1S73-4, 12. No liquor to be sold within two miles of university. Section 1. It shall not be lawful for any person or persons to keep or expose for sale, or sell, or give, or permit others to take, for a consideration, directly or indirectly, any malt, spirituous, or other alcoholic liquors, upon or within two miles of the grounds belonging and adjacent to the university of California in Alameda county. Penalty. Sec. 2. Any violation of section first of this act, shall be deemed a misde- meanor, punishable by fine, or imprisonment in the county jail of Alameda county, or both. The fine to be not less than fifty dollars nor more than one hundred dollars; and the imprisonment to be not less than thirty nor more than ninety days for each offense. Sec. 3. This act shall take effect from and after the first day of February, one thousand eight hundred and seventy -four. An Act to provide a supply of water for the university, and for the asylum for the deaf, dumb and blind. Approved April 1, 1876; 1875-6, 816. [This act provided for the condemnation for the use of the university and asylum for the deaf, dumb, and blind, of any springs or natural sources of water supply within a mile and a half of the university grounds.] ARTICLE II. ENDOWMENT OF THE UNIVERSITY. 1415. Endowment. Sec. 1415. The indorsement [endowment] of the university is: 1. The proceeds of the sale of the seventy -two sections of land granted to the state for a seminary of learning; 2. The proceeds of the ten sections of land granted to the state for public buildings; 3. The income derived fi-om the investments of the proceeds of the sale of the lands or of the scrip therefor, or of any part thereof, granted to this state for the endowment, support, and maintenance of at least one college where the leading object shall be — without excluding other scientific and classical studies, and including military tactics — to teach such branches of learning as are related to agriculture and the mechanic arts; 4. The income of the fund set apart by " An Act for the endowment of the university of California," approved April second, eighteen hundred and seventy, which is continued in force; 6. The State of California, in its corporate capacity, may take by grant, gift, 213 Ulo-1430 POLITICAL CODE. devise, or bequest, any property for the use of the university, and hold the same, and apply the funds arising therefrom, through the regents of the univer- sity, to the support of the university, as provided in article nine, section four, of the constitution; 7. The regents of the university, in their corporate capacity, may take, by grant, gift, devise, or bequest, any property for the use of the university, or of any college thereof, or of any professorship, chair, or scholarship therein, or for the libraiy, an observatory, workshops, gardens, greenhouses, apparatus, a students' loan fund, or any other purpose appropriate to the university; and such property shall be taken, received, held, managed, and invested, and the proceeds thereof used, bestowed, and applied by the said regents for the pur- poses, provisions, and conditions prescribed by the respective grant, gift, devise, or bequest; 8. The regents of the univei'sity may invest any of the permanent funds of the university, which are now or hereafter may be in their custody, in produc- tive, unincumbered real estate in this state, subject to the power of the legisla- ture to control or change such investments, excepting such as, by the terms of their acquisition, must be otherwise invested; 9. If, by the terms of any grant, gift, devise, or bequest, such as are described in the preceding sixth and seventh subdivisions, conditions are imposed which are impracticable under the provisions of the Civil Code, such grant, gift, de- vise, or bequest, shall not thereby fail, but such conditions shall be rejected, and the intent of the donor carried out as near as may be. [Amei^dmejit, approved March 30, 1874; Amendments 1873^, 31; took effect July 6, 1874.'''> AETICLE III. REGENTS OF THE UNIVERSITY. 1425. rnivey'sily coidrolled by regents. Sec. 1425. The university is under the control of a board of regents, consist- ing of twenty -two members; but the president of the university, for the time being, shall be a member of the board of regents, by virtue of his office. \Amendment, approved March 30, 1874; Amendments 1873-4, 33; took effect July 6, 1874."'> 1426. Sixteen regents appointed by the governor. Sec. 142G. Sixteen members of the board are appointed by the governor, with the ad\'ice and consent of the senate. Their term of office is sixteen years. 1427. Six other regents, appointment of. Sec. 1427. Six members of the board hold by virtue of other offices, as pro- vided in section 353. 1 4 28 . I 'd ca n cies . Sec. 1428. AVlienever a vacancy occurs in the board, the governor must ap- point some jjerson to fill it, and the person so appointed holds for the re- mainder of the term. 1429. President of the board. Sec. 1429. The governor is president of the board. 1430. Quorum. Sec. 1430. Sevrn hk mbers constitute a quorum of the board. (a) The oriKinal Bt-rlifjn rlld nfit have the Blxth, for, or of any part thereof , granted to this Btate for the Bcventh. eighth anrl ninth milHllvlhlrjnK. but it had a benefit of agriiultiire and the mechanic arts. "5. nonntiont*." The thir.l whk an follown: (fc) The original section did not have the Inst clause, 3. The inrouift derived Iroiii the iuvestuient of tho commencing with the words " but the president." proceeds of the sale of the lauds, or of the scrip there- 214 EDUCATION. 1431-1434 1431. Regents receive no compensation. Sec. 1431. The members receive no compensation. 1432. General powers and duties of regents. Sec. 1432. The powers and duties of the board of regents are as follows : 1. To meet at such times and places as their rules may prescribe, or at the call of the president of the board; 2. To control and manage the university and its property; 3. To jDrescribe rules for their own government, and for the government of the university; 4. To adopt and prescribe rules for the government and discipline of the cadets; 5. To receive, in the name of the state, or of the board of regents, as the case may be, all property donated to the university; 6. To choose a president of the university, the professors and other officers and employees of the university, prescribe their duties, fix and provide for the j^ayment of their salaries; 7. To fix the qualifications for admission to the benefits of the university; 8. To fix the admission fee and rates of tuition; 9. To appoint a secretary and treasurer, prescribe their duties, and fix and provide for the payment of their compensation; 10. To remove, at pleasure, any officer, professor or employee of the univer- sity; 11. To suj^ervise the general courses of instruction, and, on the recommenda- tion of the several faculties, prescribe the authorities and text-books to be used in the several colleges; 12. To confer such degTees, and grant such diplomas, as are usual in univer- sities, or as they deem appropriate; 13. To establish and maintain a museum; 14. To establish and maintain a library; 15. To take immediate measures for the permanent improvement and planting of the university grounds; 16. To keep a record of all their proceedings; 17. Through the president of the university, to report to the governor the progress, condition and wants of each of the colleges embraced in the university; the course of study in each, the number of professors and students, the amount of receipts and disbursements, together with the nature, cost and results of all important investigations and experiments, and such other information as they may deem imjDortant. [Amendment, approved Naixh 30, 1874; Amendments 1873-4, 33; took effect July 6, 1874.'^^ 1433. Income arising from endoivment at disposition of regents.^ Sec. 1433. The entire income arising from the endowment is subject to the trusts at the disposition of the board of regents for the support of the univer- sity. 1434. Fund to be set apart for current expenses. Sec 1434. For the current expenditures of the university specific sums of money must be set aside, out of the funds at their disposal, by the board of regents, which are subject to the warrants of the president of the board, drawn upon the treasurer of the university in j)ursuance of the orders of the board of regents. (a) The original section had eighteen subdivisionB, as are usual in universities, or as they deem appro- the fifth, twelfth and fifteenth of which were as f ol- priate ; lows: 15. To maintain a preparatorj- department, under 5. To receive, in the name of the university and for such rules and regulations as it may provide, and to its benefit, all property donated to it; employ such teachers, and secure such buildings, by 12. To confer such degi-ees and grant such diplomas purchase or otherwise, as are necessary therefor. 215 1435-U50 POLITICAL CODE. 1435. Funds mm/ be drawn from state treasurer. Sec. 1435. All moneys which may at any time be in the state treasury, subject to the use of the board of regents, may be drawn therefrom by the lu-esident of the board, upon the order of the board, in favor of the treasurer of the university. [Amendment, approved Mareh 30, 1874; Ameyidmerds 1873-4, 35; iuok elf'ect July 6, 1874.^"^ 1436. Construction of buildings. Sec. 143G. The regents must cause to be constructed such buildings as are needed for the use of the university. 1437. Plan of buildings. Sec. 1437. The plan adoj^ted in the construction of buildings must provide separate buildings for separate uses, and so group all such buildiugs that a central building may bring the whole in harmony as part of one design. 1438. Bids for construction and furnishing buildings. Sec 1438. The construction and furnishing of the buildings must be let out to the lowest responsible bidder, after advertisement for not less than ten days in at least two daily newspapers published in the city of San Francisco; but the regents may reject any bid, and advertise anew. 1439. Temporary buildings. Sec 1439. Until the university buildings are ready for use, the regents may make temjjorary arrangements for buildings at Oakland. AKTICLE IV. SECllETAKY OE THE BOARD OF REGENTS. 1449. Qualif cations and choice of secretary. Sec. 1449. A practical agriculturist, competent to superintend the working of the agricultural farm and to discharge the duties of secretary of the board of regents, must be chosen by the board as their secretary. 1450. Residence and duties of secretary. Sec 1450. The secretary must: 1. Reside and keep his office at the seat of the university; 2. Keep a record of the transactions of the board of regents, which must be oi^en at all times to the insijection of any citizen of this state; 3. Have the custody of all books, papers, documents, and other property which may be deposited in his office; 4. Keep and file all reports and communications which may be made to the university appertaining to education, science, art, husbandry, mechanics, or mining; 5. Address circulars to societies and others, soliciting information upon the latest and best modes of culture of the products adapted to the soil and climate of the state, and on all subjects connected with field culture, horticulture, stock raising, and the dairy; 6. CorresjKUid witli established schools of mining and metallurgy in Europe, and obtain inforinatiun respecting the improvements of mining machinery adapted to California; 7. Coirespond with tlie patent office at Washington, and with the representa- tives of tlie government of the United States abroad, to procure contributions to agriculture from these sources; receive and distribute seeds, plants, shrub- ber}-, and trees ada^tted to our climate and soils, for the purposes of exjieri- ment; (a) The original section did not have the words " of the board " after the word " president." 210 EDUCATION. 1450-1475 8. Obtain contributions to the museums and the library of the university; 9. Keep a correct account of all the executive acts of the president of the university; 10. Keep an accurate account of all moneys received into the treasury or paid therefrom; 11. Distribute the seeds, plants, trees, and shrubbery received by him, and not needed by the university, equally throughout the state, to farmers and others who \\:ill agree to cultivate them properly and return to the secretary's oflQce a reasonable proj:)ortion of the products thereof, with a statement of the mode of cultivation, and such other information as may be necessary to ascer- tain their value for cultivation in the state; 12. Publish from time to time in the newspapers of the state, free of charge, information relating to agriculture, the mechanic arts, mining, and metallurgy. 1451. Term and compensation. Sec. 1451. The secretary holds office at the pleasure of and receives the com- pensation fixed by the board. AETICLE V. ACADEMIC SENATE OF THE UNIVERSITY. 1461. Academic senate. Sec. 1461. The academic senate is composed of the faculties and instructors of the university. 1462. General powers of . Sec. 1462. The senate must conduct the general administration of the univer- sity, regulate the general and special courses of instruction, receive and deter- mine all appeals from acts of discipline enforced by the faculty of any college, and exercise such other powers as the board of regents may confer upon it. 1463. Proceedings of. Sec 1463. Its proceedings must be conducted according to rules of order adopted by it, and every person engaged in instruction in the university may participate in its discussions; but the right of voting is confined to the president and the j)rofessor8. ARTICLE VI. UNIVERSITY CADETS. 1473. University cadets. Sec 1473. The students of the university must be organized into a body known as the " University Cadets." 1474. Officers of cadets. Sec 1474. The officers of cadets, between and including the ranks of second lieutenant and colonel, must be selected by the chief military instructor, with the assent of the president of the university, and must be commissioned by the governor. [Amendment, approved Ilarch 30, 1874; Amendments 1873-4, 35; took effect July 6, 1874.^'" 1475. Equipment of cadets. Sec. 1475. The adjutant-general of the state must issue such arms, munitions, accoutrements, and equipments to the university cadets as the board of regents may require and the governor approve. [Amendment, approved March 30, 1874; Amendments 1873-4, 35; took effect July 6, 1874.^''> (a) Original section; capacity for command, and must be commissioned by Sec. UU. The officers of cadets, between and in- the governor, eluding the ranks of second lieutenant and colonel, (b) The original section did not have the words must be elected by the academic senate after a com- " arms " or " accoutrements." petitlve examination, involving both scholarship and 217 U70-U89 POLITICAL CODE. 1476. Retired officers of. Sec. 1-476. Upon graduating or retinng from tlie university, such officers may resign their commissions or hokl tlie same as retired officers of the uni- vex^ity cadets, liable to be called into sei^ice by the governor in case of war, invasion, insurrection, or rebellion. 1477. Report of military instructor. Sec, 1477. The military instructor must make quarterly rej^orts to the ad- jutant-general of the state, showing the number, discipline, and equipments of the cadets. CHAPTEE II. STATE NORMAL SCHOOL. 1487. Object of school. Sec. 1487. The state normal school, located at San Jose, has for its object the education of teachers for the public schools. 1488. Under control of hoard of trustees. Sec. 1488. It is under the management and control of a board of trustees, constituted as provided in Title I of Part III of this Code. [See ante, 354.] 1489. General poioers and duties of board. Sec. 1489. The powers and duties of the board of trustees, are as follows: 1. To prescribe rules for their own government, and for the government of the school; 2. To j)rescribe rules for the reports of officers and teachers of the school, and for visiting other schools and institutes; 3. To prescribe the course of study, and the time and standard of graduation; 4. To prescribe the text-books, ajiparatus, and furniture, and provide the same, together with all stationery, for the use of the pupils; 5. To establish and maintain training or model schools, and require the pupils of the nonnal school to teach and instruct classes therein; 6. To elect a principal and other necessary teachers, fix their salaries and prescribe their duties; 7. To issue diplomas of graduation upon the recommendation of the faculty of the school; 8. To control and expend all moneys appropriated for the support and main- tenance of the school, and all moneys received for tuition, or from donations; in no event shall any moneys aj^propriated for the support of the schqol, or re- ceived from tuition or donations, be paid or used for compensation or traveling expenses of the trustees of the school; 9. To keep a record of their proceedings; 10. To keep open to public inspection an account of receipts and expenditures; 11. To annually report to the governor a statement of all their transactions, and of all mutters pertaining to the school; 12. To transmit with such report a copy of the principal teacher's annual report. 13. To revoke any diploma by them granted, on receiving satisfactory evi- dence that the holder thereof is addicted to drunkenness, is guilty of gross immorality, or is reputably dishonest in his dealings; provided, that such person shall have at least thirty days previous notice of such contemplated action, and shall, if he asks it, be heard in his own defense. [Amendment, ap- proved March 30, 1874; Amendments \Kl'i-4c, 75; took effect immediately.^"'' (a) The original sftction did not have the thirt' . ntli 7. To issue certificates of standing and of gradua- BiibdiviHion. In the eighth It ilid not have the hist tiou. clauHe commencing with the words "in no event." The seventh tjubdivibi ju was as followB; 218 EDUCATION 1490-1502 1490. Begidar meetings of hoard. Sec. 1490. The board must hold two regular meetings in each year. 1491. Special meetings of hoard. Sec, 1491. It may hold special meetings at the call of the secretary. 1492. Time and place of meeting of hoard. Sec. 1492. The time and place of regular meetings must be fixed by the by- laws. The secretaiy must fix and give written notice of the time and place of special meetings. [Sec. 1493*^*^ was repealed by act approved March 30, 1874; Amendments 1873-4, 79; took effect immediately.] 1494. General qualifications for admission as pvpil. Sec 1494. Every jjerson admitted as a pupil of the normal school course must be : 1. Of good moral character; 2. Of sixteen years of age; 8. Of that class of persons who, if of a proper age, would be admitted in the public schools of this state without restriction. [Ame7idment, approved March 30, 1874; Amendments 1873-4, 76; took effect immediately.^^'' 1495. Pupils from state at large. Sec 1495. Teachers holding state certificates of the first or second gi'ades may be admitted from the state at large. 1496. Pupils from other states. Sec 1496. Persons resident of another state may be admitted upon letters of recommendation from the governor or superintendent of schools thereof. [Amendment, approved llarch 30, 1874; Amendments 1873-4,77; took effect im- mediately.^"'' 1497. Pupils to file certain declaration. Sec. 1497. Every person making apj)lication for admission as a puj^il to the normal school must, at the time of making such application, file with the prin- cipal of the school a declaration that he enters the school to fit himself for teaching, and that it is his intention to engage in teaching in the public schools of this state, or in the 'state or territory where the applicant resides. [Amend- ment, approved March 30, 1874; Amendments 1873-4, 77; took effect immediately .^^^ [Sees. 1498, 1499 and 1500 '^> were repealed by act approved March 30, 1874; Amendments 1873-4, 79; took effect immediately.] 1501. Pi'incipal to make annual report. Sec 1501. The principal of the school must make a detailed annual reiDOi-t to the board of trustees, with a catalogue of the j^upils, and such other particulars as the board may require or he may think useful, 1502. To attend county institutes. Sec 1502. He must also attend county institutes, and lecture before them on subjects relating to public schools and the profession of teaching. (a) Repealed section: retary a cTeclaration that lie enters the school to fit Sec. 1493. At one of the regular meetings in each himself for teaching, and that it is his intention to year the board must determine the number of pupils engage in teaching in the public schools of this state, to be admitted from the counties, and this number ( e) Repealed sections: must be apportioned among the counties in proiior- Sec. 1498. The board of examiners of each county tion to the number of members of the assembly from must, before the first day of May in each year, hold each. ■ competitive examinations of all qualified persons de- (6) The original section did not have the words " of siring to be admitted from such county as jiupils in the normal school course," and in the second sub- the normal school. division it had the words "over sixteen" instead of Sec. 1499. Such examinations must be held in the " of sixteen." same manner as examinations for third grade county (c) The original section had the following addi- certificates. tional words, " and upon payment of one hundi-ed dol- Sec. 1500. Persons passing such examination must, lars." in the order of their proficiency to the number appor- (d) Original section: tioned to such county, upon the certificate of the board Sec. 1497. Every person resident of this state must, of examiners, be admitted as pupils of the noi-mal upon admission as a pupil, sign and file with the sec- school. 219 1503-1507 POLITICAL CODE. 1503. Diplomas and certificates, xdhen to issue. Sec. 1503. Tpon the recommendation of the faculty of the scliool, the board of trustees may issue to those who worthily complete the full course of study and training prescribed, a diploma of graduation. To the persons receiving this diploma, the state board of examination shall grant a first-grade state certificate. In like manner they shall issue to those who worthily complete the post graduate course, a professional diploma. To the persons receiving this diploma, the state board of examination shall grant an educational diploma; and they may, at their discretion, issue an elementaiy diploma to those who worthily comj^lete such part of the course of study and training as may be prescribed. To the persons receiving this diploma, the state board of education shall grant a second-grade state certificate. [Amendment, apjjroved March 30, 1S74; Amendments l^lZ-4:, 11; took effect immediately ^^ 1504. Secretary of hoard of trustees. Sec 1504. The board of trustees shall have power to appoint a secretaiy, who shall receive no compensation. A full record of all the proceedings of the board of trustees shall be kept at the school, and shall be open to public inspec- tion. [Amendment, approved March 30, IST-l; Amendments 1873-4, 78; took efTect immediately .^^^ 1505. SujJO^ision by superintendent ofjniblic instruction. Sec. 1505. The suiDerintendent of public instruction must visit the school from time to time, inquire into its condition and management, enforce the rules and regulations made by the board, require such reports as he deems jiroper from the teachers of the school, and exercise a general supervision over the same. [Amendinod, approved March 30, 1874; Amendments 1873-4, 78; took effect immediately.^"'' 1506. Biennial appropriation to be made. ^Skc. 150G. The sum of twenty-four thousand dollars must be api)ropriated biennially, out of any moneys in the general fund not otherwise aj)proj)riated, one half of which appro})riatiou must be set apart at the commencement of each fi.scal year to support the state normal school. "Whenever, at the close of any fiscal year, a balance remains to the credit of the state normal school fund, such balance must be carried forward and added to the approj)riation for the suc- ceeding year. 1507. Orders on controller, how drawn. Skc. 1507. All orders upon the controller of state by the board of trustees, must be signed by the })resident of the board, and countersigned by the secre- tan,-. L'pon presentation of the order aforesaid, signed and countersigned as af(jresaid, the controller of state must draw his warrant on the state treasurer ill favor of the board of trustees for the moneys, or any part thereof, appropri- ated and set apart for the support of the normal school, and the treasurer must pay such warrant on presentation. [Amendments, approved March 30, 1874; Amendments 1873-4, 78; took effect immediately.^^' [The following acts in relation to the state normal school may here be referred to:J (1) Orliflnal nf;rtlon: from time to tiiim, inquire into its oondition and niau- Skc. \M\. Kvn liolrllnj; n diploma iRBuert by ngcincut, enforce the rules and rcKulatioiiK mad" by the the liounl of tnihtci'K of the normal Kc'hool may tench in board, require Kuch reijorts as he deems iiroper from the i)ubllc- Hchords of this htate for the time uud in the tctachers of the school and ofliublic instruction, he forfeits one hun- dred dollars of his salary, and the board of supervisors, upon receiving from the superintendent of public instmction notice of such failure, must deduct the amount forfeited from his salary. [Amendnients, approved 3Iarch 28, 1874; Amendments 1873-4, 90; took eff\'cl from jjassage.^"^ (a) Original section: hoard of supervisors, upon receiving from the superin- Seo. 154-t. If he fails to make any report required teudent notice of such failure, must deduct the amount under the provisions of subdivision 14 of section 1543, forfeited from his salary. he forfeits one hundred dollars of his salary, and the 15 225 1545-1551 POLITICAL CODE. 1545. May appoint teachers and open schooh, xclien. Sec. 1545. He must, when there is sufficient money in the fund of any school district to maintain a school therein for five months, if the trustees fail to have such school kept, appoint a teacher and open and keep such school, and may draw his warrant upon the fund of such district for the expense incurred. 1546. Mail direct repairs, etc., lohen. Skc. 154(!. He may, in his discretion, require the trustees of any district to repair the school buildings or property, or to abate any nuisance in or about the premises, if such repairs or abatement can be done for a sum not exceeding fifty dollars, and there is a sufficient amount of money in the treasury to the credit of the district. He may also in all cases require the trustees to provide suitable outhouses, and, where practical)le, to adorn the grounds with frviit and ornamental trees and shrubbery; and if the trustees neglect to make such pro- vision, he maj' cause it to be done, and pay for it on his ow^n warrant out of any money to the credit of the district. [Sec. 1547^"' Avas repealed by act apiH'oved March 28, 1874; Amendments 1873-4, 111; took eli'ect from passage.] 1548. Warrants for expenses and claims. Sec. 1548. He must draw his warrants on the unapportioned county school fund for the i^ayment of members of the county board of examination, and in his own favor for the binding of school documents, not to exceed twenty dollars a year; for postage and expressage for his office, not to exceed one dollar for each district in his county, and for any other incidental expense as may be author- ized b}- law. [Ame)idment, approved March 28, 1874; Amendments 1873-4, 90; took effect from passage.'-^^ 1549. 3Iay appoint deputy. Sec. 1549. Each county superintendent may appoint a deputy, but no salary pa3'able out of the school fund must be allowed such dejDuty. [Amend7nent, approved March 28, 1874; Amendments 1873-4, 90; took effect from passage. ^" 1550. Compensation of deputy in San Francisco. Sec. 1550. The deputy school superintendent of the city and county of San Francisco may receive such compensation as the board of education thereof prescribes, payable in the same manner and out of the same fund as the school superintendent thereof is paid. 1551. Scliool superintendent to report number of children. Sec. 1551. Each school superintendent in this state must, on or before the first day of August in each year, report to the supeiintendent of public instruc- tion, and to the boai'd of supervisors of their respective counties, the number of cliildren in their counties between the ages of five and seventeen years, as appears by the latest returns of the census marshal on file in their office. \Neiu section, approved March 13, 1874; Amendments 1873-4, 85; took cff'ect from passage. Duty as to l)ou}td(iries of school districts. Sec. 1551. It sliall be the duty of every county supeiintendent to inquire and ascertain whether tlie boundaries of school districts in his county are definitely and plainly described in the records of the board of supervisors, and to keep in (o) Rcpealfid section: Sko. 1548. He niuRt drnw liis warrant on the county ■ BKf. 1.'.47. He iimst point the inspector and judges of election; if none are so appointed, or if they are not present at the time for opening the polls, the electors present may appoint them. 1597. Opening and closing polls. Six. 1597. In districts in which the number of children between five and fifteen years of age exceed five hundred, the polls must be ojoened at eight o'clock A. M. and kept open until sundown; in other districts the jjolls must not be opened before nine o'clock a. m., nor closed before twelve o'clock m., nor kept upen less than one hour. 1598. Who may vote. Sec 1598. Every elector of the county avIio has resided in the district for thirty days next preceding the election may vote thereat. 1599. Voting must be by ballot. Sec 1599. The voting must be by ballot; provided, that the provisions of sections eleven hundred and eighty-seven and eleven hundred and ninety-one may be dispensed with. [Amendment, approved March 28, 1874; Amendments 1873-4, 94; toolc effect from passage.'-^^ 1600. Challenges. Sec. IGOO. Any person offering to vote may be challenged by any elector of the district, and the judges of election must thereupon administer to the person challenged an oath, in substance as follows: "You do swear that you are a citizen of the United States, that you are twenty-one years of age, that you have resided in this state six months next preceding this election, and in this school district thirty days, and that you have not before voted this day." If he takes the oath prescribed in this section his vote must be received, otherwise his vote must be rejected. [Amendment, approved March 28, 1874; Amendments 1873-4, 94; took effect from passage.^'^ 1601. Poll lists. Sec. IGOl. A poll and tally list must be kept and returned to the board of trustees. 1602. Cei-tificates of election. Sec 1G02. The officers of election must, after counting the votes, make and deliver cci-tificates of election to the persons elected, a copy of which, with the oath of office attached, must be forwarded to the county superintend- ent. [Amendment, approved March 28, 1874; Amendments 1873-4, 94; took effect from passage. '^'^'^ ARTICLE VII. BOARDS OF TRUSTEES OF SCHOOL DISTRICTS, AND CITY BOARDS OF EDUCATION. 1611. School district to he under control of three trustees. Sec IGll. Except when othei'wise authorized by special statute, every school district shall be under tlie control of a board of school trustees, consisting of (a) OHkIdhI fiectlon: {h) OrlRinal section: Sec. l.TO.'). Not 1<-hh than five ensation of census marshals must be audited and paid as other claims upon the school fund of the district are audited and paid. 1640. Neglect or refusal of census marshal to report a misdemeanor. Sec. 1640. If the census marshal neglects or refuses to make his report at tlie time and in the manner herein required, or to perfoim any other duty devolved upon him, he must be deemed guilty of a misdemeanor, and on conviction, be punished by fine or imprisonment. [New section, approved March 13, 1874; Amendments 1873-4, 85; too/c effect from passage. AKTICLE IX. CLERKS OF SCHOOL DISTRICTS. 1649. WJtrn and lioio elected. Sec. 1649. Boards of trustees must annually, on the first Saturday of July, meet and elect one of their number clerk of the district. 1650. Ge)teral duties of. Sec. 1650. It is the duty of the clerk: 1. To act as clerk of the board, and keep a record of their proceedings; 2. To keep an account of the receipts and expenditures of school moneys; 3. To keep his records and accounts open to the inspection of the electors of the district; 4. To perfoiTn such other duties as may be prescribed by the board. 1651. TT7/en to provide supplies, etc. Sec 1651. The clerk of each district must, under the direction of the board of trustees, provide all school suj^plies authorized by this chapter, and keep* the schoolhouse in repair during the time school is taught therein. 1652. Wlien to act as marshal, assessor, or collector. Sec. 1652. The clerk may act as assessor, or collector, or as both, of district taxes, in either of which cases he must be paid the same compensation which would have been allowed by the board to any other person. ARTICLE X. SCHOOLS. 1662. Who may be admitted to. Sec. 1662. Every school, unless otherwise provided by special statute, must be open for the admission of all white children between five and twenty-one years of age residing in tlie district, and the board of ti-ustees or board of edu- cation Imve power to admit adults and children not residing in the district, whenever good reasons exist therefor. 1663. Schools to be graded. Sfx'. 1663. All schools, unless otherwise provided by special statute, must be divided in fii-st, second, and third grade. Each county superintendent must, under instructions from the state board of education, deterujine the respective (a) The original Kcrtion diil not have the wordB " or guch benevolent iustitutione as deaf and dumb, blind and orphan aeylums." 234 EDUCATION. 1663-1673 grade. or class of schools in his county. [Aynendment, approved March 28, 1874; Amendments 1873-4, 97; took effect from passage}"^ 1664. To he taught in the English language. Sec. 1664. All schools must be taught in the English language. 1665. Instruction, branches in. Sec. 1665. Instruction must be given in the following branches in the several grades in which each may be required, viz. : Reading, writing, orthography, arithmetic, geography, grammar, history of the United States, j)hysiology, natural philosophy, natural history, elements of form, vocal music and indus- trial drawing. [Amendment, approved March 28, 1874; Amendments 1873-4, 111; took effect from passage. ^'^'' 1666. Other studies. Sec. 1666. Other studies may be authorized by the state board of education, or board of education of any city or city and county, but no such studies can be pursued to the neglect or exclusion of the studies in the j)receding section specified. 1667. Instruction in manners, etc. Sec 1667, Instruction must be given in all grades of schools, and in all classes, during the entire school course, in manners and morals. 1668. Physical exercise, etc. Sec. 1668, Attention must be given to such physical exercises for the pupils as may be conducive to health and vigor of body as well as mind, and to the ventilation and temperature of school-rooms. 1669. Schools for Negro and Indian children. Sec 1669. The education of children of African descent, and Indian children, must be jirovided for in separate schools; provided, that if the directors or trustees fail to provide such separate schools, then such children must be ad- mitted into the schools for white children. [Amendment, approved March 28, 1874; Amendments 1873-4, 97; took effect from passage.'-''^ 1670. How established. Sec 1670. Upon the written application of the parents or guardians of such children to any board of trustees or board of education, a separate school must be established for the education of such children. 1671. Governed by same rules as schools for tvhites. Sec 1671. The same laws, rules, and regulations which apply to schools for white children apply to schools for colored children. 1672. Sectarian books and teachings prohibited. Sec 1672. No jDublication of a sectarian, partisan, or denominational char- acter must be used or distributed in any school, or be made a part of any school library; nor must any sectarian or denominational doctrine be taught thei'ein. Any school district, town, or city, the officers of which knowingly alloAv any schools to be taught in violation of these provisions, forfeits all right to any state or county apportionment of school moneys; and, upon satisfactory evi- dence of such violation, the superintendent of public instruction and school superintendent must withhold both state and county apportionments. 1673. Duration of daily sessions. Sec 1673. No school must be continued in session more than six hours a day; and no pupil under eight years of age must be kept in school more than (a) The original section had the words "school (6) The original section did not have the -words superintendent " instead of " county superintendent." " elements of form." (c) The original section did not have the proviso. 235 1673-1687 POLITICAL CODE. foui- hours per Jay. Any violatiou of the provisions of this section must be treated in the same manner as a viohition of the provisions of the preceding section. ARTICLE XI. PUPILS , 1683. Pupih, hoic admUlcd. Seo. 1G83. Pupils must be admitted into the schools in the order in which they apply to be registered. 1684. M'(s( submit lo regulations. Sec. 1684. All pupils must comply with the regulations, pursue the required coui-se of study, and submit to the authority of the teachers of such schools. 1685. Suspension and expulsion of. Sec. 1685. Continued willful disobedience or open defiance of the authority of the teacher constitutes good cause for expulsion from school; and habitual profanity and vulgarity good cause for suspension from school. 1686. Defacing school property, liability for . Sec. 1686. Any pupil who cuts, defaces, or otherwise injures any school- house, fences, or outbuildings thereof, is liable to suspension or exj^ulsion, and, on the complaint of the teacher or trustees, the parents or guardians of such pupils shall be liable for all damages. [Amendment, approved March 28, 1874; Amendments ISld—k, 112; took effect from pjassagey 1687. Experienced teachers for beginners. Sec. 1687. In cities having graded schools beginners shall be taught, for the first two years, by teachers who have had at least four years' experience; and such teachers shall rank, in })oint of salary, Avith those of first grade. Au Act to enforce the educational rights of childreu. Approved March 28, 1871; 1873-1, 751. Children to be sent to school. Section 1. Every parent, guardian, or other person in the State of California having control and charge of any child or children between the ages of eight and fourteen years, shall be required to send any such child or children to a public school for a period of at least two thirds of the time during which a public school shall be taught in each city, or cit}'^ and county, or school district, in each school j'ear, commencing on the first day of July, in the year of our Lord one thousand eight hundred and seventy-four, at least twelve weeks of which shall be consecutive, unless such child or children are excused from such attendance by the board of education of the city or city and county, or of the trustees of the school district in which such parents, guardians, or other persons reside, upon its being shown to their satisfac- tion that his or her bodily or mental condition has been such as to prevent attendance at school, or aitplication to study for the period required, or that the parents or guardians are extremely poor or sick, or that such child or children are taught in a private school, or at home, in such branches as are usually taught in the primary schools of this state, or have already acquired a good knowledge of such branches; provided, in case a public school shall not be taught for tlnce months during the year, within one mile by the nearest traveled road, of the residence of any person within the school district, he shall not be liable to the i)roviHions of this act. Ifotice of law. Sec 2. It shall be the duty (if the president of each board of education, and (a) TUe ori(,'iual suction did not Luvt- the luHt cluuiie riuniuouciug witli the wurdu " aud, on the complaint. " 236 EDUCATION. 1G87 of the clerk of each board of district trustees in the State of California, to cause to be posted three notices of this law in the most public i)laces in the citj, or city and county, or in the school district, or published in one newspaper therein for three weeks, in the month of June, in each year, the expense of each publi- cation to be paid out of the school funds of such city, or city and county, or school district, as the case may require. Misdemeanor. Sec. 3. In case any parent, guardian, or other j^erson shall fail to comply with the provisions of this act, said parent, guardian, or other person shall be deemed guilty of a misdemeanor, and shall be liable to a fine of not more than twenty dollars; and for the second and each subsequent offense the fine shall not be less than twenty dollars nor more than fifty dollars; and the parent, guardian, or other person so convicted, shall pay all costs. Each such fine shall be paid to the clerk of the projoer board of education, or of the district trustees. Pi-osecutions. Sec. 4. And it shall be the duty of the clerk of each board of education and of each board of district trustees, on complaint of any teacher or taxpayer, to prosecute all oifenses occurring under the j^rovisions of this act; and any clerk neglecting to prosecute such ofiense within ten days after a written notice has been served on him by any teacher or taxpayer within the limits of the authority of said board, unless the person so complained of shall be excused by the proper school board, shall himself be liable to a fine of not less than twenty dollars nor more than fifty dollars, which fine shall be prosecuted for in the name of the people of the State of California, and the fine so collected shall be paid over to the clerk of the board of education or trustees of the proper city, or city and county, or school district, to be accounted for as in section three of this act; and in case such prosecution fail, the expenses thereof shall be paid out of the school fund of the city, or city and county, or school district, in which the case arose. Lists and reports. Sec. 5. And it shall be the duty of the census marshal to furnish each board of education and of district trustees, with a complete list of all children living within the jurisdiction of said board, and to note on such lists all children not attending colleges, college schools, private schools, or being taught at home, who are liable to the provisions of this act; and each teacher teaching within the limits of the jurisdiction of such board, shall be supplied with a list of all children within his or her department or school, and shall call such list each morning on the oi^ening of school, and note the absentees, and the reason of such absence, if any, and at the close of each term of twelve weeks, shall make a full report to the board of education, or of district trustees, of all such cases of absence, with the names both of children and parents, guardians, or other persons having such children in charge, and said board shall thereupon forth- with proceed to i^rosecute such parents, guardians, or other persons, according to the provisions of this act. JDeaf, dumb, and blind. Sec 6. And whereas, the state has provided an institution for the gi-atuitous instruction of all resident deaf and dumb or blind children between the ages of six and twenty-one years, every parent or guardian of any child or children affiicted with deafness or blindness, shall be required, under the penalties hereinbefore si^ecified, to send such child or children to said institution for a period of not less than five years, unless such child or children shall have been excused by the authorities, and on the grounds specified in section one of this act. 237 1687-1699 POLITICAL CODE. Jurisdiction. Sec. 7. Any justice of the peace of the proper city, or city and county, or school district, shall have jurisdiction of all offenses committed under the pro- visions of this act. Sec. 8. This act sliall be in force and effect from and after the first day of July, ei^'hteeu hundred and seventy-four. ARTICLE XII. TE.\CUERS. 1696, General duties of teachers. Sec 1696. Every teaclier in the public schools must: 1. Before assuming charge of a school, file his certificate with the county superintendent; 2. On taking charge of a school, or on closing a term of school, immediately notify the county superintendent of such fact; 3. Enforce the course of study, the use of text-books, and the rules and regulations jirescribed for schools; 4. Hold pupils to strict account for disorderly conduct on the way to and from school, on the play-grounds, or during recess; suspend for good cause any pupil in the school, and re^iort such suspension to the board of trustees or education for review. If such action is not sustained by them the teacher may appeal to the county superintendent, whose decision shall be final; 5. Keep a state school register; 6. Make an annual report to the county superintendent at the time, and in the manner, and on the blanks prescribed by the superintendent of public instruction. Any school teacher who shall end any school term before the close of the school 3'ear, shall make a report to the county superintendent immediately after the close of such term; and any teacher who may be teaching any school at the end of the school year, shall, in his or her annual report, include all statistics for the entire school year, notwitlistanding any j)reviouB report for a part of the year; 7. Make such other reports as may be reqxiired by the suj^erintendent of public iustniction, county superintendent, or board of trustees or education. [Amejidmeiit, approved March 28, 1874; Amendments 1873-4, 98; took effect from paasafje .'"'' 1697. School month in relation to salary of teachers defined. Sec. 1697. A school month is construed and taken to be twenty school days, or four weeks of five school days each. 1693. Ajipecd alloiced from order removing teacher for incompetency . Sec, 1698. In case of the dismissal of any teacher before the expiration of any written contract entered into between such teacher and board of trustees, for alleged unfitness or incompetence or violation of rules, the teacher may appeal to the school superintendent, and if the superintendent decides that the removal was made without good cause, the teacher so removed must be rein- stated. 1699. Appeals in other rases. Sec. 1099. Any teac-lior whose salary is withheld may appeal to the superin- tendent of public instruction. (a) ThfMjriKlniil Bcctlon (11(1 not hnw cithir the flrnt fourth did not have the; word " public," nor the last oriieronil BuMlvlHion, and th.- othdivlKi.in di.l fifth did not havo the words " Buperintendeut of public Dot have the word " Uxi." Th<: w.cond did not havt- Instruction, county." thelut sentence commencing, " by such action." Tlic 238 EDUCATION. 1700-1702 1700. No warrant to be drawn in favor of teacher, unless he performs his duty. Sec. 1700. No warrant must be drawn in favor of any teaelior, unless the officer whose duty it is to draw such warrant is satisfied that the teacher has faithfully performed all the duties prescribed in section sixteen hundred and ninety-six. [Amendment, approved March 28, 1874 ; Amendments 1873-4, 99 ; took effect from passage. ^** 1701. Nor unless he hold certificate, and was emplorjed. Sec 1701. No warrant must be drawn in favor of any teacher, unless such teacher is the holder of a proper certificate, in force for the full time for which the warrant is drawn, nor unless he was enij)loyed by the board of tiiistees or education; provided, that nothing in this section shall interfere with any special school laws now in existence for the counties of Trinity, Shasta, or Inyo. [Amendment, approved March 28, 1874; Amendments 1873-4, 99; took ejfect from passage. '"' 1702. Duties of teachers as to instructions. Sec. 1702. It shall be the duty of all teachers to endeavor to impress on the minds of the pupils the principles of morality, truth, justice and patriotism; to teach them to avoid idleness, profanity, and falsehood, and to instnict them in the i^rinciples of a free government, and to train them up to a tiiie comprehension of the rights, duties, and dignity of American citizenship. [New section, ap- proved March 28, 1874; Amendments 1873-4, 99; took effect from passage. An Act concerning the employment of teachers in the iDiiblic schools in the counties of Trinity and Shasta. Approved March 18, 1874; 1873-4, 472. Qualifications of teachers. ^ Section 1. The board of trustees of any of the public schools in the counties of Trinity and Shasta, where there are less than twenty-one school children in the school district, are hereby authorized to employ any suitable person to teach in their districts, not having the legal certificate of a teacher, Avhenever a majority of the parents or guardians of children in their districts shall so peti- tion. [Amendment, approved March 3, 1876; 1875-6, 122; took effect sixtieth day after passage. Official duties not to be invalidated. Sec. 2. The emjDloyment of such teachers in any districts in said counties shall not operate to prevent the apportionment thereto of any state or county moneys which would otherwise be so apportioned; and the superintendents of public schools, and the county treasurers of said counties, are hereby directed, in their respective duties, to apportion moneys, draw warrants, pay the same, and do all other acts that they, in their official capacities, would be required to do if said schools had teachers holding legal certificates. [Amendment, approved March 3, 1876; 1875-6, 122; took effect sixtieth day after passage. Sec 3. All acts or parts of acts, so far as they conflict with this act, are here- by repealed, and this act shall take effect and be in force from and after its passage. [Amendment, approved March d, 1876; 1875-6, 122; took effect sioctieth day after passage. An Act concerning the employment of teachers in Inyo and Mono counties. Approved March 20, 1874; 1873-4, 509. Teachers without certificates. Section 1. The board of trustees of any school district in the counties of Inyo (a) The original section had the words "his duties" (6) The original section did not have the words "for instead of " all the duties prescribed in section 1696." the full time for which the warrant is drawn," nor the proviso, 239 1702-1717 POLITICAL CODE. and :Mono shall liave power to employ a teaclaer or teachers not holding the requisite legal certificate, wlienever a majority of the parents and guardians of children attending such school shall so petition, and whenever the services of satisfactory applicants holding such certificates cannot be obtained. School moneys. Sec 2. The employment of such teachers in any district in said counties, shall not operate to prevent the apportionment thereto of any state or county moneys which would otherwise be so apportioned. Sec 3. This act shall take efiect from and after its passage. An Act to preveut discriiiiiiiatioii against femele teachers. Approved, March 30, 1874; 1873-4,938. Female teachers to receive same compensation as males. Section 1. Females employed as teachers in the public schools of this state shall in all cases receive the same compensation as is allowed male teachers for like senices when holding the same grade certificates. Sec. 2. This act shall take effect and be in force from and after its passage. AKTICLE XIII. DISTRICT LIBRARIES. 1712. Lxhrarijfund, hoiv expended. Sec. 1712. The boards of trustees and of education must expend the librarj^ fund, together with such moneys as may be added thereto by donation, in the purchase of school apparatus and books for a school library. [Amendment, approved March 28, 187-4; Amendments 1873-4, 99; took effect from passage. 1713. Of what fund consists. Sec. 1713. Except in cities not divided into school districts, the libraiy fund consists of ten per cent, of the state school fund annually apportioned to the district, unless ten per cent, exceeds fifty dollars, in which event it consists of fifty dollars annually taken from the fund so ai)portioned. 1714. Same. Sec 1714. In cities not divided into school districts the library fund consists of the sum of fifty dollars for every five hundred children between the ages of five and fifteen years, annually taken from the state school fund apportioned to the city. 1715. Control and location of library. Sec 1715. Libraries are under the control of the board of trustees or educa- tion, and must be kept when practicable in the schoolhouses. 1716. TI7/0 may use. Sec 1710. The library is free to all pupils of a suitable age belonging to the school, and any resident of the district may become entitled to its i)rivileges by the payment of such a sum of money for life membership or such annual or monthly fee as may be prescribed by the trustees. 1717. Trustees, power and responsibility as to libraries. Sec. 1717. The trustees shall be held accountable for the proper care and preservation of the librarj', and shall have power to assess and collect all fines, penalties, and fees of membership, and to make all needful rules and regula- tions not provided for by the state board of education, and not inconsistent therewitli, and tliey shall report annually to the county superintendent, all librarj' statistics whi(;h may be rerpiired by the blanks furnished for the purpose by the superintendent of puljlic instruction. [Neio section, approved March 28, 1874; Amendments 1873-4, 100; took effect from passage. 240 EDUCATION. 172G-1747 ARTICLE XIV. EDUCATIONAL JOURNAL. 1726. [Secs. 172(1, 1727, 1728, 1729, 1730, cand 1731'"' were repealed by act approved April 1, 1876; Amendments 1875-G, 27; took effect from passage.] ARTICLE XV. STATE BOARD OF EXAMINATION. 1741. Hoto composed. Sec. 1741. The state board of examination consists of the superintendent of public instruction and four teachers holding state educational diplomas ap- pointed by him. 1742. Chairman. Sec. 1742. The superintendent of public instruction is chairman of the board. 1743. 3Iee(wgs. Sec. 1743. The board must meet at such times and places as the chairman directs, and must hold at least two sessions in each year. 1744. General poioers of hoard of examination. Sec. 1744. The board has power to grant: 1. Recommendations for life diplomas; 2. State educational diplomas, valid for six years; 3. State certificates of the first grade, valid for four years; 4. Certificates of the second grade, valid for three years; 5. State certificates of the third grade, valid for two years, to be granted only to females; 6. To review on appeal an order revoking a county or city certificate. [Amend- ment, approved March 28, 1874; Amendments 1873-4, 100; took effect from pas- sage. '-^^ 1745. .Limitations on power to issue life diplomas. Sec. 1745. The life diploma must be issvied to such persons only as have been engaged for ten years in teaching, and who have received the educational diploma, or who after receiving such educational diploma have held for one year the office of state, city, or school superintendent. 1746. Limitation as to educational diplomas. Sec. 1746. State educational diplomas must be issued to such persons only as have been emj^loyed in teaching for five years, and who have held a first- grade state certificate for at least a year. [Amendment, approved March 28, 1874; Amendments l'Sl'&-4:, 100; took effect from passage. '''''' Yl^. Applications for life diplomas. Sec. 1747. Apj^licants for life diplomas must file with the state board of edu- (a) The repealed sections ■were as follows: tion of twelve montlily copies must not exceed one dol- Sec. 1720. Some jom-nal published in this state, and lar and fifty cents; and the state board cf education devoted exclusively to educational purj^oses, must be has power to reduce the rate whenever the journal can designiited by the state board of education as the " State be creditably sustained at a lower rate. Educational Journal." Sec. 1731. At the beginning of each school year the Sec. 1727. The superintendent of public instruction superintendent of iJublic instraction must draw his must be one of the editors of the journal. order in favor of such journal on the state controller Seo. 1728. It must contain a department devoted to for an amount suflBcient to pay for such subscriptions, the publication of the monthly reports of the state which order must be certified by the state board of normal school ; the decisions and apportionments made; education and allowed by the state board of examiners, and the instructions and circulars issued by the state whereupon the state controller must draw a warrant board of education or the superintendent of public therefor on the state treasurer, payable out of any un- instruction. apportioned school moneys in the treasury. Sec. 1729. The superintendent of public instruction (6) The original section did not have the words " Rec- must annually subscribe for a sufficient number of cop- onimendations for "in the first subdivision; "state" ies of such journal to supply each school superintend- in the third, or " to be granted only to females." ent, city superintendent, clerk of the district, and dis- (c) The original section did not have the last clause trict school library with one copy thereof. commencing with the words "and who have." Sec. 1730. The price paid for each annual subscrip- 16 241 17i7-i753 POLITICAL CODE. cation certificates of tbeir success iu teaching; and tbe board, after examina- tion, must present tbe appHcation to tbe state board of education, witb its recommendation. [Amendment, approved 3Iarch 28, 1874; Amendments 1873-4, 101; took effect from passage}^'^ 1748. Examination of applicants for diplomas and certificates. Sec. 1748. Every appbcant for a state certificate sball be examined by written and oral questions in algebra, geography, history of the United States, consti- tution of tbe United States and California, physiology, natural philosophy, natural bistoiy, ortbogi-apby, defining, penmanship, reading, method of teach- iutr, vocal music, drawing, and school law of California. [Amendment, approved Ularch -28, 1874; Amendments 1873-4, 101; took effect from passage}"^ 1749. Standing to be indorsed on certificates. Sec. 1740. The standing in each study must be indorsed upon the educa- tional diploma or certificate, or otherwise it is not a valid certificate. [Amend- ment, approved March 28, 1874; Amendments 1873-4, 101; took effect from ptassage.'''^ 1750. Certificates may be issued without examination, ivhen. Sec. 1750. Normal school diplomas, from any state normal school in the United States, and life diplomas by the state board of examination or educa- tion, in any of tlie United States, must be recognized by this state as primary evidence of fitness for teaching; and the board may, on application of the hold- ers thereof, issue, without examination, state certificates, and fix the grade thereof. [Ameiidment, approved March 28, 1874; Amendments 1873-4, 101; took effect from passage.'-'^^ 1751. Slate certificates on examinations before covnty boards. Sec. 1751. The board may grant state certificates to those who, in examination before county boards, have attained the standard of proficiency prescribed by the state board of education; provided, that the original examination papers be forwarded to the state board of examination within fifteen days after the close of the examination. [Amendment, approved March 28, 1874; Amendments 1873-4, 102; took effect fi'om jyassage.'-^'' 1752. Revocation of diplomas or certificates. Sec. 1752. Tbe board may, for immoral or unprofessional conduct, profanity, intemjierance or evident unfitness for teaching, revoke any educational diploma or certificate granted by it. [Amendment, approved March 28, 1874; Amendments 1873-4,102; took effect from passage. '-^^ 1753. Beneical of. Sec 1753. The board may, at the expiration of the time for which they are granted, renew diplomas or certificates for a like period for which they were originally granted. [Amendment, approved January 20, 1876; Amendments 1875-6, 28; look effect immediately. '^^^ (n) The original section had the following additional It also had the following additional sentence after sentence: " grade thereof:" •' The htate lx)ard of oduiation inny recognize the life " When any applirant presents to the state board of diplr>iiiah of c eiiimined by writthlloM)phy, na'ura) history, ortliograpiiy, dehn- " profanity, intemiierance," " evident " or " granted by Jng, ixniiinnshli), rea'ling, method of teaching, and It." vocal music and drawing. (.7) The original section was the same as the amend- (<:) The original section liad the words " in the class ment in the text, and " after thi- word " standing." Ii was previously amended by act of March 28, 1874 (d) The original secth.n did not have the words (Amendments 187:i-4:, 102), so as to add the words " ex- "or educatimi." Bi-fore the words " tliis state" it cept of the third grade " after the word " certificates." bad the Murds " the state board of examiuutiou of." 242 EDUCATION. 1754-1770 1754. EligihUUy to teach of holders of diplomns. Sec. 1754. The holders of diplomas are eligible to teach in any public school, except in high schools in which languages other than the Englisli are required to be taught by such teachers. 1755. Same of holders of certificates. Sec. 1755. Holders of state certificates are eligible to teach as follows: 1. Those of the first grade, in grammar schools; 2. Those of the second, in second grade schools, and as assistants in gram- mar schools, except first and second grades; 3. Those of the third, in primary schools. 1756. [Sec 175G, **' was repealed by act approved March 13, 1874 ; Amend- ments 1873-4, 84; took effect from passage.] 1757. Fees from persons receiving life diplomas. Sec 1757. Every person receiving a life diploma must j^ay to the board three dollars, to defray the expense of issuing such diploma. 1758. Compensation of members of the hoard. Sec 1758. Each of the appointed members of the board shall receive an annual salary of two hundred dollars, payable out of the general fund on the warrant of the state controller, indorsed by the superintendent of public in- struction. ARTICLE XVI. COUNTY BOARDS OF EXAMINATION. 1768. Board, how composed. Sec 1768. Each county board of examination is composed of the county school superintendent of such county, except as provided in section seventeen hundred and sixty-nine, and not less than three teachers who follow the j^ro- fession of teachiug at the time thej^ are chosen, and holding a certificate of fitness for teaching, not less than a first grade county certificate, appointed by the county school superintendent. [Amendment, approved February 14, 1876; Amendments 1875-6, 28 ; took effect from passage. '''* 1769. Chairman. Sec. 1769. When the county school superintendent is the holder of a certifi- cate equal to a first grade county certificate, in full force and effect, he shall be the chairman of the county board of examination; and in case the county super- intendent is not the holder of a certificate equal to a first grade county certifi- cate, in full force and effect, the county superintendent of the county shall designate and appoint the principal of the school having the greatest number of pupils therein, as the chairman of said board of examination, to serve as such chairman not more than one year and not less than one term of said board, in the discretion of such superintendent. [Amendment, approved February 14, 1876; Amendments 1875-6, 28; took effect from passage. '"' 1770. Meetings. Sec 1770. The county board must meet and hold examinations as follows: Commencing on the first Wednesday in the months of December, March, June, (a) Repealed section: posed of the school superintendent of such county and Sf:c. 1756. Every applicant for a state diploma or cer- not less than three teachers (holding not less than a tificate must pay a fee of two dollars, and the amount first grade county certificate, if there are so many in collected must be applied to the support of the state the county) appointed by him. educational journal. (c) Original section: (6) Original section: Seo. 17(19. The school superintendent is chairman of Skc. 1708. Each county board of examination is com- the board. 243 1770-1775 POLITICAL CODE. and September. The place of meeting must be designated by tlie cLairman. [Amendment, apjyroved Jlarch 28, 1874; Amendments 1873-4, 102; took effect from passage}"'' 1T71. Power to grant certificates. Sec. 1771. The count j board of examination has power to grant certificates of three gi-ades : 1. County certificates, first grade, valid for three years, and authorizing the holder to teach a gi-ammar school, or a school of the first grade in the county. 2. County certificates, second gTade, valid for two years, and authorizing the holder to teach a second grade school in the county. 3. County certificates of the third grade, valid for one year, and authorizing the holder to teach a third grade [school] in the county. 4. Third gi'ade certificates are granted only to females. 5. The board may also grant to the holders of certificates granted by the boards of examination of the various counties of this state, certificates of like grade and standing as those held by such apj^licants without examination. [Amendment, approved Aprill, 1876; Amendments 1875-6, 29; took effect sixtieth day after p)assage}^' 1772. Certiffcates, to whom to he issued. Sec 1772. Certificates must be granted only to those who have passed a satisfactory examination in all the studies required for a state certificate of cor- responding grade, and upon the questions prepared by the state board of ex- amination, and reached the percentage i")rescribed by the state board of educa- tion; provided, that applicants for second grade county certificates shall be required to pass an examination only in arithmetic, grammar, geography, com- position, history of the United States, orthography, defining, penmanship, reading, and method of teaching; and provided further, that applicants for tliird grade county certificates shall be required to pass an examination only in arithmetic, grammar, geograjihy, orthography, defining, reading, and method of teaching. [Amendment, ajyproved February 14, 1876; Amendments 1875-6, 28; took effect from passage.'"'' 1773. Examination!^, hoiv to be conducted. Sec 1773. All examinations must be conducted partly in writing and in part orally. [Amendment, approved March 28, 1874; Amendments 1873-4, 103; took effect from joassage.'-'^'' 1774. Standing to be indorsed on certificate. Skc 1774. The standing of each applicant in each study and in the class must be indorsed on the back of each certificate, otherwise it is not a valid ff-rtificate. 1775. Jienewal and revocation of certificates. Sec. 1775. The board may, without examination, renew second grade county certificates ui)on the application of the persons who have held them for two years, and also third grade county certificates upon the application of the persons who have lichl llicm f(.r one year, to remain in full force and effect so long as such (a) The oriRlniil Hcrtlon had llic wonls " and at such be isBued to thoBe only who have passed a satisfactorj- other tiiiXBBH the chainnan may din. t " after the word exiiniinaticju in all of the above subjects except natural "September." pliilosophv and algebra. (M The original Bectlon did not have the fifth sub- It was pr. vioiisly amended by act of Marcli 2«, 1874; division. Aniendini-nts lh7:i-4, 102, so as to read as follows: (r) Original BPctlon: Sko. 1772. Certificates must be granted to tliose only Hkc. 1772. CertiflcistcB of the first grade must (except who have piiswd a satisfactoi-j- examination in all the 8B In this arliili- otherwltc jirovldrd) be granted to studios required for a' state certificate (jf corresponding those- nlywlio have p.-isscd a t-allsfactory examination gr.-.de, and upon the quesflouR prepared by the state In orthography, defining, readluK. pi-nmansliip. physl-' boaid of examination, and reached the percentage ologv-. natur;;] jdiilosophy, ( (.mposlfi.,n, Hrithmttic. priscrlbcd by the state board of education, algebra, geogriiphy. grammar, historj- <.f the Tnited [J) Tl.e original section had the words " in the above- S'htiB, natural history, industrinl drawini;, and the named studies " after " examinations." method of teaching. C't-rtiCcatea of second grade must 244 EDUCATION. 1775-1791 persons follow tlie occupation of teachers, pro"\dded that the hoard may revoke any county certificate for immoral or unprofessional conduct, profanity, intem- perance, or evident unfitness for teaching. [Amendment, approved February 14, 1876; Amendments 1875-G, 28; took (^feci/rom passage}^'' I Sec. 1776'"' was repealed by act approved March 28, 1874; Amendments 1873—4, 111; took effect from passage.] 1777. Compensation of hoard. Sec. 1777. Members must receive for their sendees a sum not exceedino- three dollars j^er day, in addition to actual traveling expenses, for each quar- terly session of the board, payable out of the unapportioned county school fund, on the wan-ant of the county superintendent. [Amendment, approved Mardi. 28, 1874; Amendments 1873-4, 111; took effect from passage}"^ AKTICLE XVII. CITY BOARDS OF EXA^IINATION. 1787. Mast he a hoard in each city. Sec. 1787. In every city or city and county having a board of education there must be a board of examination. 1788. Hoio constituted. Sec. 1788. Each board of examination consists of the city and county super- intendents of schools and of four teachers resident of such city and holders of state diplomas, elected by the board of education and holding office for two years. 1789. Chairman. Sec. 1789. The school supeiintendent of the city is chairman of the city board of examination. 1790. Meetings, Sec. 1790. The board must meet and hold examinations as follows: Com- mencing on the first Wednesday in the months of December, March, June, and September. The place of meeting must be designated by the chairman. [Amendment, approved March 28, 1874; Amendments 1873-4, 103; took effect from passage.'-^'' 1791. General powers. Sec 1791. The board has power to grant: 1. Certificates of the same grade and for the same time as the state board of examination has power to grant; 2. High school certificates, valid for six years; 3. S^DCcial certificates of the first grade, vaUd for four years, upon such special studies as may be authorized by the state board of education or board of education in any city, or city and county; 4. High school and special certificates must be granted upon such examina- tions as may be authorized by the state board of education, or board of educa- tion of any city, or city and county. All other certificates must be granted (a) The original section was like the following to a graduate of any normal school, a first or second amendment except that it did not have the words grade county certificate. "profanity, intemj^erance or evident," and had the (c) The original section had the following additional words " the profession of " before " teaching." sentence: It was previously amended by act of JIarch 28, 1874; " When a board holds sessions atother timesno corn- Amendments 1875-6, 29, so as to read as follows: pensatiou is allowed from the county; but the board Sec. If75. The board may, without examination, re- may ch.-irge an examination fee not exceeding two dol- new certificates, and may revoke any county certificate lars for each applicant." for immoral or unprofessional conduct, profanity, in- {d) Original section: temperance, or evident unfitness for teaching. Sec. 1790. The board must meet at such times and (!>) Repealed section: places as the chairman may direct. Sec. 177G. The board may without examination grant 245 1791-1S18 POLITICAL CODE. ujioii examinations in all the studies required for a state certificate of corre- sponding grade, and upon questions prepared by the state board of examination, and upon the percentage prescribed by the state board of education. [Amend- ment, approved March 28, 1874; Ameiidments 181 3-4:, 104:; took ejj'eci from passage}"'' 1792. ]l7» crrlificates may be granted or revoked. Sec. 1792. The board may without examination grant certificates of like grade to holdei-s of certificates granted in other cities, and renew all certificates granted by it, and revoke any certificate for immoral or unprofessional conduct, profanity, intemperance, or evident unfitness for teaching. [Amendynent , ap- pro red January 20, 1876; Amendments 1875-0, 30; took e^'ect immediately}^' 1T93. Eligibility to teach of holders of city certificates. Sec. 1793. The holders of city certificates are eligible to teach in the cities in which such certificates were granted, in schools of grades corresijondiug to the grade of such certificates. 1794. Compensation allowed. Sec. 1794. The teachers, members of the board, may receive such compen- sation as may be allowed by the board of education, payable out of the city school fund. AKTICLE XVIII. COUNTY SCHOOL TAX, 1817. County superintendent to furnish supervisois and auditor annually statement of amount of funds required. Sec 1817. The county superintendent in each county, except in the city and county of San Francisco, must, on or before the first regular meeting of the board of supervisors, in September in each year, furnish the board of supervisors and the auditor, respectively, an estimate in writing of the minimum amount of county school funds needed for the ensuing year. This amount he must compute as follows: 1. He must ascertain, in the manner provided for in subdivisions one and two of section one thousand eight hundred and fifty-eight, the total number of teachers for the county; 2. He must calculate the amount required to be raised, at five hundred dollars per teacher; from this amount he must deduct the total amount of state appor- tionments, less ten per cent., received by the county for the next preceding school year, and the remainder shall be the minimum amount of countj' school fund needed for the ensuing year; provided, that if this amount is less than Hufiicient to raise a sum equal to three dollars for each census child in the county, then the minimum amount shall be such a sum as will be eqiial to three dollars for each census child in the county. [Neiv section, approved March 28, 1874; Amendments 181Z-4, 105; took effect from passage. 1818. L>'vy if county tax. Sec. 1818. The board of sui)ervisors, except of the city and county of San Francisco, of each county, must, annually, at the time of levying other county taxes, levy a tax to be known as the county school tax, the maximum rate of which must not exceed fifty cents on each one hundred dollars of taxable property in the county, nor the minimum rate be less than sufficient to raise the minimum amount reported by the county superintendent, in accordance with (n) Tlif orlKirial wctlonrlld not have flthcr the third It WfiB previouKly amended by act of Marcli 28, 1874; or fourth fiiibdivihion. AiiieiidiiientB 1873-4, 104, so bb to read like the ainend- {h) The oriKlnal wetloii did not have the lai 1896. Who are exempt from military duty. Sec 1896. The following persons are exempt from military duty and enroll- ment: 1. jMinisters of religion; 2. Civil and military officers of the United States; 3. Officers of foreign governments; 4. Civil officers of the State of California; 5. All persons exempted from military duty by the laws of the United States. 1897. Assessor to enroll persons subject to military duty — Taos collector to make en- roUmeid in San Francisco. Sec 1897. The district or county assessor of each and eveiy revenue district or county in this state must, at the same time in each year when he prepares a roll containing the taxable inhabitants of his district or county, enroll all the inhabitants thereof sul)ject to military duty, which roll must be sworn to by him and delivered to the clerk of the board of supervisors at the same time he delivers the assessment roll. In the city and county of San Francisco the tax collector must perform the duties by this section imposed uj^on assessors. 1898. Penally for neglect or refusal to make return. Sec. 1898. If any assessor or the tax collector of the city and county of San Francisco neglects or refuses to pei-fonn any of the duties required of him by this chapter, he is subject to the same liabilities as are provided by lawfor a neglect or refusal to perform any of the duties required of him in the assessment of taxes, and, in addition, forfeits not less than three hundred nor more than one thousand dollars, to be sued for in the name of the people of the state, by the district attorney of the respective county, and when recovered to be i^aid into the military fund of the state. If the clerk of the board of equalization 254 MILITIA. 1898-1913 neglects or refuses to make and deliver to the lirigadier-general of the brigade to which his county belongs the triplicate of the military assessment roll, as directed in this chapter, he forfeits not less than three hundred nor more than five hundred dollars, to be sued for, recovered, and disposed of in the same manner. 1899. Boards of equalization to correct the roll. Sec. 1899. The board of equalization must correct the roll at the same time and in the same manner as is prescribed by law for the correction of the assess- ment roll. 1900. Copies to he forwarded to brigadier-general. Sec. 1900. The clerk of the board of super^dsors must deliver to the briga- dier-general of the brigade to which his county belongs a triplicate of such roll certified by him, within ten days after the board of equalization have completed their corrections. 1901. Compensation of assessors. Sec. 1901. The compensation of assessors for making out the military roll must be determined by the board of supervisors of the several counties, at the rate of five dollars for each one hundred names of persons returned by the assessors as subject to military duty. 1902. Bluster roll to he made by brigadier-general. Sec. 1902. Each brigadier-general must, on the first Monday in October of each year, make from the rolls received by him a muster roll, showing the number of persons within the limits of his command subject to militaiy duty, the original of which, signed by him, must be filed in his office, and a copy thereof transmitted at once to the adjutant-general. CHAPTER II. THE NATIONAL GUARD. Article I. General Provisions relating to National Guard 1912 II. Companies 1951 III. Regiments and Battalions 1982 IV. Divisions and Brigades 2003 V. Parades and Drills 2018 ARTICLE I. GENEEAL PROVISIONS EEL.\TING TO THE NATIONAL GUAED. 1912. National guard, of what it consists. Sec 1912. The organized uniformed militia of the state are known as the national guard. This force shall not exceed thirty-six companies, as follows: thirty-one comjjanies of infantiy, three companies of cavalry, and two of artillery; and must be located throughout the state with reference to the mili- tary Avants thereof, means of concentration, and other military requirements. j [Amendment, approved March 30, 1876; Amendments 1875-6, 30; took effect from I and after July 1, 1876.^*> ' 1913. Board of location and organization. Sec. 1913. The commander-in-chief, major-general, adjutant-general, and the , brigadier-general of each brigade, constitute a board for location and organiza- \ tion of the national guard within such brigade, with power to transfer, attach, or disband companies, and to reorganize at pleasure regiments and battalions. } (n) The original section instead of "militia" had different arms, not to exceed in all forty;" Instead of I the word " troops;" instead of " shall not exceed thirty- " thirty-one " the words " thirty-two," and instead of 1 Bix companies " the words •' consists of companies of " three companies " the word " six." 255 1914-1023 POLITICAL CODE. ^ 1914. Xaiional guard io he organized into regiments. Sec. 11>14. All companies of the national guard must as far as in-acticable be organized into regiments, battalions, and batteries. 1915. What ojficers belong to. Sec. 11)15. All commissioned officers of the staff of the commander-in-chief, the adjutant-general, and the officers of his staff, the major-general and briga- dier-genei-als, and all officers of their respective staffs, belong to the national guard, and are at all times subject to be called into active service by the com- mander-in-chief; and when called into active service, each officer must be called and mustered according to his commission. 1916. Governor commander-in-chief. Sec. 1916. The governor is commander-in-chief of the national guard. 1917. Staff of cov\mander-in-chief. Sec. 1917. His staff consists of one adjutant-general, with the rank of briga- dier-general; one chief engineer, one paymaster-general, one judge advocate general, and one surgeon-general, each with the rank of colonel, and six aids- de-camp, with the rank of lieutenant-colonel; appointed by and holding office at the pleasure of the commander-in-chief. 1918. Appointment and term of office of generals. Sec 1918. The commander-in-chief, by and with the advice and consent of the senate, must apjDoint one major-general, and for each brigade of the na- tional guard of the state, one brigadier-general, who must be citizens of the fnited States and of the state; and the brigadier-generals must be residents of localities within the brigades for which they are appointed. They hold their offices for the term of four years. 1919. Restrictions in residence of staff officers. Skc. 1919. The staff officers must be residents of the state and of their re- spective brigades. 1920. Effect of line officers accepting commissions on staff. Sec. 1920. Any officer of a regiment, battalion, or company, accepting any staff ajipointment, except that of adjutant and quartermaster, is held to have resigned his commission in such regiment, battalion, or company. 1921. Oath of officers and members. Sec. 1921. All officers and soldiers of the national guard, on becoming mem- bers and before jierforming duty, must take and subscribe the following oath, which all commissioned officers thereof are authorized to administer: " I do solemnly swear that I -will support the constitution of the United States and the constitution of the State of California, and will maintain and defend the laws and all officers employed in administering the same." "Which oath, certified by the officer administering the same, must be returned to the adjutant-general and l>e preserved with the rolls of companies. 1922. Systnn of instruction. Sec 1922. The systems of instruction prescribed for the different arms in the United States army must be followed in the military drills and instruction by the national guard and the enrolled militia when called into active service. 1923. Uniform. Sjx. 1923. Tiie uniform of the national guard is the same as that adopted and in use by similar troops in the army of the United States. Companies already organized may wear the uniform now in use until supplied l)y the state with the proper uniform, after whicli the uniform so supplied must be worn, except at company parades or drills. No moneys received from the state musii, 25G MILITIA. 1923-1932 be used or applied to the purchase of uniforms other than those first in this section mentioned. The uniform of generals and staff officers is similar to that of officers of the same grade in the army of the United States. 1924. Rank of officer. Sec. 1924. All commissioned officers of regiments, battalions, and companies of the national guard must take rank according to the date assigned them by their commissions; and when two of the same grade are of the same date their rank must be determined by length of j)i'evious military service in the state; and if of equal service, then by lot. Officers of regiments, battalions, and companies of the national guard in all cases are of sujDerior rank to officers of the enrolled militia of the same grade, irrespective of the date of theii- com- missions. 1925. Officers re-elected not to he recommissioned . Sec. 1925. When an officer is re-elected no new commission issues, but a certificate of such election must be indorsed upon his original commission. 1926. Resignations, how made. Sec 1926. Any officer resigning his commission must do so in writing, and transmit the same through his immediate commanding officer, who will make his indorsement thereon, and the resignation takes effect when accepted by the commander-in-chief. 1927. Vacancies in elective offices, how filled. Sec 1927. Vacancies in elective offices are filled by election. "When vacan- cies occur at an election through the promotion of any officer, such vacancies may then and there be filled without further order. ■'/' 1928. Absence or removal, when deemed resignation. Sec 1928. Any commissioned officer who removes from the limits of his brigade is deemed to have resigned, and the major-general, brigadier-general, or any commissioned officer who absents himself from the state for more than three months, without the permission of the commander-in-chief, is deemed to have resigned. 1929. Discharges, when and by ivhom granted. Sec 1929. No officer of the national guard inferior in gi-ade to a regimental or battalion commander or an officer commanding an unattached comj^any, has power to grant discharges to non-commissioned officers, artificers, musicians, or privates. All discharges must be in writing, and must set forth fully the cause of the discharge, and be signed by the officer granting it. 1930. Disobedience of orders, unsoldierlike conduct — penalty. Sec 1930. Any officer or private on military duty who disobeys the orders of his superior, uses reproachful or abusive language to his superior, or misbe- haves or demeans himself in an uuofficer or unsoldierlike manner, must be immediately arrested, if a commissioned officer, and if a non-commissioned officer or soldier, must be disarmed and put under guard, and tried and punished by a court-martial, according to law and military usage. 1931. Interrupting officer or private in discharge of his duty — penalty. Sec 1931. If any person interi-upts, molests or insults-, by abusive words or behavior, any officer or private while in the perfonnance of his military duty, he must be immediately ]yut under guard and kept, at the discretion of the com- manding officer of the forces engaged in the performance of such duty, until the setting of the sun of the same day on which the offense is committed. 1932. Expulsion for disgraceful cause bar to re-entry. Sec 1932. No non-commissioned officer, ariificer, musician or private expelled from his company, or dismissed from service for any disgraceful cause, must be 17 257 1932-1937 POLITICAL CODE. permitted to again euter any company of the national guard, except the offense is pardoned by the commander-in-chief. 1933. Protection of paradr ground. Sec. 1933. The" commanding officer of any parade, review or drill, and the officer in charge of any rendezvous, may cause the ground selected for that pur- pose to be marked or designated in such a manner as not to obstruct the passage of travelers on any public highway; and if any person, during the occupation of such ground for such military purpose, enters upon such ground without the pennission of the officer commanding or in charge, he may be put and kept under guard, by the order of such commander, until the setting of the sun of the same day. 1934. By-laics. Sec. 1934. Eegimental, battalion and company rules of government and by- laws, regularly adopted and approved by such regiments, battalions or com- panies, not inconsistent Avith the provisions of this title, may be adopted and enforced in such regiments, battalions and companies. 1935. Fines. Sec. 1935. All fines and penalties for non-attendance upon drills, parades, and inspections, legally determined and imj)osed under the provisions of such rules and by-laws, 'may be collected by action in justice's court, in the name of the people of the State of California; and the books and records of regiments, battalions, and companies, and the proceedings under vdiich delinquents are fined, are prima facie evidence of the facts therein stated. [Amendment, ap- proved March 30, 1874; Amendments 1873-4, 35; took effect July 6, 1874.'''^ 1936. Exemption from poll tax, etc. Sec. 1936. All officers, musicians, and privates of the national guard, who comply with all military duties, as provided in this chapter, are eii titled to the following privileges and exemptions, viz. : Exemption from payment of jdoII tax, road tax, and head tax of ever}" description. All officers, non-commis- sioned officers, musicians, and privates, who have faithfullj^ served in the mili- tary service of this state, for the space of seven consecutive years, and receive the certificate of the adjutant-general certifying the same, are thereafter exempted from further military service, except in time of war. And the adju- tant-general must issue such certificate of exemption, when it appears that the party applying is entitled to the same. [Amendment, approved March 30, 1874; Amendments 1873-4, 36; took effect July 6, 1874.(''> 1937. Lid of pei'soyis so exempt to he given to assessor. Sec. 1937. Each commander of a comi^any of the national guard must make out a list, certified under oath before a notary public, on or before the first day of !Miirch of each year, of every officer, non-commissioned officer, musician, and private of the company entitled to exemption from tax, which list must be transmitted to the colouel or commanding officer of the regiment or battalion to which such company belongs, who must transmit the same, together with a list of his i'uAd and stall" and non-commissioned staff, made out in like manner and certified by him under oath before a notary public, to the brigadier-general, which lists, if correct and approved by the brigadier-general, must by him be sei'ved upon the county assessor of the county in which such regiments, bat- talions, or companies are located; and the county assessor must thereupon note opposite the names of all persons such exemption. (o) The original Bection had the word " priiriary " (';) The original section after the words " head tax instead of " prima facie." of every description " had the words " exemption from jury duty and from sen-ice on any poBse comitatiis." 258 MILITIA. 1938-1956 1938. Commander-in-chief may disband, etc. Sec. 1938. The commauder-iu-chief may at any time disLand any portion of the national guard. 1939. Bides and regulations of United States army, how far applicable. Sec. 1939. The rules and regulations of the army of the United States so far as the same may be applicable and not inconsistent with the laws of this state, constitute the rules and regulations for the government of the national guard. 1940. No fees allowed to officers for administering oaths. Sec. 1940. No officer is entitled to charge or receive any fee or compensation for administering or certifying any oaths administered or certified under the provisions of this chapter. AKTICLE II. COMPANIES, AND THE DISTRIBUTION OF ARMS. 1951. Applications for leave to organize companies. Sec 1951. Whenever a sufficient number of persons, residents of any county in this state, subject to military duty, subscribe a call for the organization of a company, the adjutant-general, upon the application of such person, and with the approval of the general of brigade, must present the same to the board for the organization of the national guard. 1952. If accepted, brigadier-general must appoint person to organise. Sec 1952. If such company is accepted, the adjutant-general must direct the brigadier-general to appoint some person, resident of the county, to open a book in which to enter the names of persons so applying, and must fix a time and place of meeting for the purpose of organization, by giving ten days, notice thereof, by publication in some newspaper, or by posting notices in at least three public p)laces in the county. 1953. Organization. Sec 1953. The person appointed must: 1. Preside at such meeting and organize the same; 2. Superintend the election for commissioned officers of the company, which must be by ballot; 3. Make out, after such election, a list of persons organized, a certificate of each officer elected, together with a copy of the proceedings of the meeting, and a copy of his aj^pointment, and of the notice of the meeting, certified by him, and transmit them to the brigadier-general commanding the brigade. 1954. Brigadier-general to act upon certificate, and transmit it. Sec 1954. The brigadier-general must, if found correct, transmit the same, with his approval, to the adjutant-general. 1955. Company to be listed and officers commissioned. Sec 1955. If such company has been organized and the officers elected in conformity with the provisions of this chapter, the company must be listed in the office of the adjutant-general as a company of the national guard, and the officers elected must be commissioned and hold office for the term of two years. 1956. Non-commissioned officers of companies. Sec 1956. All company non-commissioned officers of the national guai'd must be nominated by commanders of their respective companies, subject to the ap- proval of the commanders of the regiment or battalion; and such non-commis- sioned officers cannot thereafter be removed or reduced in rank excejot as herein provided, or by the commander of the regiment or battalion, for neglect of duty or other sufficient cause. 259 1957-1963 POLITICAL CODE. 1957. Non-coi7wnssioned officers of haiteries. Sec. 1957. Commanaers of batteries and unattached companies liave the same authority with non-commissioned officers as is herein conferred upon command- ers of regiments and battalions. 1958. Company name or number. Sec. 1958. Each company of the national guard may adopt a distinct name; but if attached must be known by a particular letter or number in the regiment or battalion to which it belongs. 1959. Compamj roll and term of service. Sec. 1959. All persons on entering the national guard must sign a company roll, and join for 2iot less than three years' service. 1960. Person not to he member of iivo companies at the same time. Sec. 19G0. No j)erson can be a member of two companies at the same time; and any member of a company who removes beyond the limits of the county is discharged from such company. 1961. Companies, how armed and equipped. Sec 19G1. The companies of the national guard are armed and equipped in the same manner as similar corps in the United States army. 1962. JSumber of officers and privates. Sec. 19G2. The comj^anies of the national guard are composed of the following officers and privates, viz. : 1. Each company of cavalrj', of one captain, one first lieutenant, one senior and one junior second lieutenant, five sergeants, four corporals, one trumpeter, one farrier and not less than thirty nor more than eighty privates; 2. Each company of infantry, of one captain, one first lieutenant and one second lieutenant, one orderly sergeant, one quartermaster sergeant, four ser- geants, eight corporals, one marker, one drummer, one fifer and not less than forty nor more than one hundred privates; 3. Light batteries, of one captain, two first lieutenants, two second lieuten- auts, one first sergeant, one quartermaster sergeant, six sergeants, twelve cor- l)oraLs, two musicians, one wagoner and not less than thirty privates. 1963. Requisition for arms and equipments. Sec. 1903. "When a company is organized, its commanding officer may make a requisition thi'ough the proper military channel for such arms and accoutre- ments, ammunition, clothing and stores as are required. An Act to furnish arms for the use of military academies in the state. Approved February 20, 1872; 1871-2,121. Military academy — majors. Section 1. That Avhen a military academy has been established within the state, having not less than eighty boys, uniformed, drilled, and instructed in strict accordance with the tactics of the regular United States army service, and all its course of education and economy conducted upon strict military prin- ciples, the military instructor of such academy, when regularly elected by the board of trustees or other lawful authority of the academy, be commissioned in the national guard of California, with the rank of major. JJond and issue of arms, etc. Sec 2. That upon giving bond, with good security, to be approved by the county judge of tlie county where the academy is situated, conditioned for the safe keeping against fire, loss, and against all damages, in twice the value, that arms and accoutrements, the property of the state, be issued for the use of such military academy, 2G0 MILITIA. 1963-1971 Eequisition. Sec. 3. The adjutant-g-eueral of the state is liereby authorized to issue such arms and accoutrements as may be needed by the said military academies, with- out a monthly allowance, in the same manner as arms and accoutrements are issued to regular organized comjDanies of the national guard of California, upon requisition made for this purpose, approved by the commander-in-chief. Sec. 4. This act shall take effect immediately. 1964. Proceedings on approval of requisition. Sec. 1964. If the commander-in-chief approve the requisition, he must make an order upon the back thereof directing the issue by the adjutant-general, who must immediately notify the officer making the requisition that the arms, accoutrements, and ammunition, or any portion thereof, are ready to be issued. 1965. Bonds and seciirihj. Sec. 1965. Thereupon such officer must give such bonds and security as may be required by the adjutant-general to secure the state from loss on account of use or misax^plication thereof. 1966. Issue of arms, etc. Sec 1966. Such bonds being to his satisfaction, and on receiving duplicate receipts from such company officer, the adjutant-general must make the issue. 1967. Receipt. Sec 1967. The adjutant-general must file one copy of such receipts in his office, and transmit the other to the general of brigade. 1968. Inspection of arms, etc. Sec 1968. All arms, equipments, and military stores are subject to examina- tion by the inspector and ordnance officers of the state, and of any other officer designated by the commander-in-chief for that purpose. 1969. Repair of arms, etc. Sec 1969. If such officer find any of such property out of repair, injured or defective, he must immediately notify the facts to the commander-in-chief through the proper channel, who, if the damage is not repaired, and the defects and losses supplied within a reasonable time, must order the same to be done u,nder the direction of some officer; and the vouchers for the expense thereof, when audited by the state board of military auditors, must be paid from the military fund on the warrant of the controller. 1970. Mastei's and muster-rolls. Sec 1970. The commanding officer of each company must, in the month of September in each year, muster and inspect his company, and make out and certify triplicate muster-rolls showing the names and number of the members of the company, the officers in the order of their rank, and the privates in alpha- betical order, and he must also attach to each roll a list of the ordnance, ordnance stores, arms, accoutrements, clothing, and other property of the state in possession of the company. He must transmit, through the proper militaiy channels, one copy of the roll and list attached, to the major-general, one to the brigadier-general of his brigade, and one to the adjutant-general. 1971. Same. Sec 1971. If such company forms a part of any organized battalion or regi- ment, the commanding officer thereof must transmit the same, with a muster- roll of the field and staff officers of his regiment or battalion, to the adjutant- general, through the proper channels of military correspondence. 261 1972-1989 POLITICAL CODE, 1972. Same. Sec. 1972. T\'ben any regiment or battalion is composed of companies located iu any one town or city of the state, the same may be mustered by its com- manding officer as a regiment or battalion. AKTICLE III. REGIMENTS AND BATTALIONS. 1982. liegimenfs and haifalions of infantry. Sec. 1982. A regiment of infantry of tlie national guard consists of not less than six nor more than eight companies. Any less number of companies than six constitute a battalion. 1983. Ii''gimen{s of cavalry. Sec 1983. A regiment of cavalry consists of not less than eight nor more than twelve companies. 1984. Field officers, number and designation. Sec 1984. The field officers of a regiment are one colonel, one lieutenant- colonel, and one major. A cavalry regiment may have two majors. The field officers of a battalion, when composed of six companies and less than eight, are one lieutenant-colonel and one major; when comiDOsed of three companies and less than six, then one major only. 1985. Mode of election. Sec. 1985. Such officers are elected b}' the commissioned officers of the differ- ent compauies comprising the regiment or battalion; and if the regiment or battalion is already formed, by all the commissioned officers thereof, and hold office for the term of four years. Upon application of the officers entitled to elect, the general of brigade to which such regiment or battalion is attached or to be attached, must apjwint a suitable person to preside at the election, who must give notice of his appointment, of the time and place of holding the elec- tion, and of the offices to be filled, which notice must be published at least ten days in some newsimper published M'ithin the limits of the brigade, or, if no paper is jjublished within such limits, by posting notices in at least three con- spicuous places. 1986. Returns of election. Si:c. 198G. Such presiding officer must make return of the election held, through the proper military channels, to the adjutant-general, who, upon find- ing tlie same in accordance with the provisions of this chapter, must notify the commander-in-chief thereof. 1987. Battalions of light artillery. Sec. 1987. "When two or more companies of light artillery are in the same brigade, they must be formed into a battalion and be commanded by a major, if composed of two companies, and by a lieutenant-colonel if of three compa- nies and less than six. 1988. Officers, and rules and regulations for. Sec. 1988. In the election of officers, the ai?pointment of non-commissioned officers, and rules of government and discipline, the provisions of this title for the government and discipline of the other arms of the national guard, as far as applicable, govern battalions of light artillery. 1989. Drills of. Si;c. 1989. The provisions in this title contained relating to battalion drills do not ai)ply to light aiiillei^; but the commanding officer of a battalion of 2G2 IVnLITIA. 1989-2006 light artillery must personally drill each company of his command not less than three times in each year, one of which drills must he with harnessed battery. 1990. Staff of colonel, lieutenant-colonel, and major. Sec. 1990. The staff of a colonel of a regiment, and of a lieutenant-colonel or a major commanding a battalion, consists of one adjutant, one quartermaster, one commissary and paymaster, and one assistant surgeon, each with the rank of first lieutenant, and one sergeant-major, and one quartermaster-sergeant, to be appointed by such commanding officer, and holding office at his pleasure. 1991. Chaplains. Sec. 1991. Commanders of regiments and battalions may appoint chaplains. Sergeant standard bearers and general guides may be detailed by the command- ing officer. 1992. Drum corps. Sec. 1992. Commanders of regiments and battalions may concentrate the music of their different commands, and organize the same under a di-um-major as a drum corps. . 1993. Bands. Sec. 1993. "When bands of music have not been organized for any regiment or battalion in the manner provided in the regulations of the arm}' of the United States, such regiment or battalion, through its commanding officer, may hire the services of any baud of musicians at their own expense, and the persons so employed are, during the term of their engagement, subject to the same laws and regulations that govern the military with which they may sers'e. AETICLE IV. DIVISION AXD BKIGADES. 2003. Number of brigades. Sec. 2003. The national guard of this state is organized into six brigades, each commanded by a brigadier-general, as follows: Fi7^st Brigade — San Diego, Los Angeles, San Bernardino, Santa Barbara, San Luis Obispo, and Monterej^ counties. Second Brigade — Santa Cruz, Santa Clara, San Mateo, San Francisco, Alameda, Contra Costa, Marin, Sonoma, Solano, Napa, and Lake counties. Third Brigade — San Joaquin, Mariposa, Tuolumne, Fresno, Stanislaus, Cala- veras, Merced, Mono, Inyo, Kern, and Tulare counties. Fourth Brigade — Sacramento, Yolo, Sutter, El Dorado, Alpine, Amador, Placer, Nevada, Yuba, and Sierra counties. Fifth Brigade — Butte, Plumas, Lassen, Colusa, Tehama, Shasta, Trinity, and Siskiyou counties. Sixth Brigade — Mendocino, Humboldt, Del Norte, and Klamath counties. 2004. The brigades compose one division. Sec. 2004. The six brigades of the national guard compose a division, com- manded by a major-general. 2005. New counties, how attached. Sec. 2005. New counties hereafter organized must be attached to the respective brigade in which the larger portion of such new county is now located. 2006. Staff of major-general. Sec. 2006. The staff of the major-general consists of one assistant adjutant- general, one engineer officer, one ordnance officer, one quartermaster, one com- missary, one paymaster, one dirision inspector, one judge advocate, and one surgeon, with the rank of lieutenant-colonel, two aids-de-campj with the rank 263 2006-2027 POLITICAL CODE. of major, and four staff orderlies, with the rank of sergeant-major, who are appointed by and hokl office at the pleasure of the major-general. 2007. Siaff of brigadier-general. Sec. 2007. The staff of each g^eneral of brigade consists of one assistant adjutant-general, one engineer officer, one ordnance officer, one quartermaster, one commissary, one paymaster, one brigade inspector, one judge advocate, and one surgeon, -n-ith the rank of major, one aid-de-camp, Avith the rank of cap- tain, and two staff orderlies, with the rank of sergeant-major, who are apx^ointed by the brigadier-general, and hold office at his pleasure. AKTICLE V. PARADES AND DRILLS. 2018. Parades, time of. Sec. 2018. The national guard of California must parade at least three times in each year : 1. On the fourth day of July, by regiment or battalion, if practicable; 2. On the ninth day of September, by battalion, if practicable; 3. In the month of May, b}^ companies, for target practice. 2019. Public Inceptions and celebrations. Sec. 2019. Upon receptions, or upon the celebration of any event of public importance, the commanding officer of the brigade may order out any portion of the national guard under his command to join in such parade. 2020. Companies jMvading ivith less than thirty members may be disbanded. Sec. 2020. Any comj)any parading at any of the parades or drills in this article provided for with a less number than thirty-two, rank and file, must be re^Dorted to the adjutant-general, and by him notified to the commander-in-chief, who in his discretion may disband the same. 2021. Exemptions from arrest. Sec. 2021. No person under military orders for parade, drill, or other mihtary service, is subject to aiTCst on civil process while going to, or returning from, or on such parade. 2022. Drills, regimental and battalion, thne of. Sec 2022. Commanders of regiments and battalions must assemble their commands for battalion drills at least once in each year, exclusive of the legal brigade, regimental, or battalion parade. 2023. Companies failing to report may be disbanded. Sec 2023. Any company failing to report for duty at such assemblage must be rei)orted to the adjutant-general, who must notify the same to the com- mander-in-chief, who may in his discretion disband it. 2024. Cavalry drills. Sec 2" was repealed by act of January 20, 1876; Amendments 1875-6, 31;- took effect from jjassage.] 2113. Salai-y of adjutant-general. Sec. 2113. The annual salaiy of the adjutant-general is three thousand dollars. 2114. Salary of assistant adjutant-general. Sec. 2114. The annual salary of the assistant adjutant-general is two thou- sand dollars. 2115. Salaries, xohen and out of what fund payable. Sec. 2115. The salaries provided for in this chapter are payable monthly out of the general fund in the state treasury. 2116. Official bond. Sec 2116. The adjutant-general must execute an official bond in the sum of twenty-five thousand dollars. 2117. Title in force, etc. Sec. 2117. The provisions of this title shall be in force and effect from and after the first day of May, eighteen hundred and seventy-two, and the chairman of the revision commission is hereby directed to have prepared and printed in pamphlet form, for the use of the adjutant-general, twelve hundred copies of the provisions of the codes relating to the militia, the cost of making the copy for the printer to be audited and allowed by the board of examiners, and paid out of the military' fund in the state treasury. TITLE y. Chapter I. Insane Asylum 2136 II. Deaf, Doib, and Blind Asyliim 2237 III. State Library 2292 IV. Supreme Court Library 2313 V. Other Public Institutions 2326 CHAPTER I. INSANE ASYLUMS. Akticlb I. Board of Dieectoes 2136 II. MkMCAL BrPKllINTKNDKNT 2150 III. Assistant Physicians 2165 IV, TllKASCKKR 2179 V. Gknkbai. PkovisioNs 2193 VI. Examination and Committal of Insane Persons 2210 ARTICLE I. the nOAUD OF DIRECTORS OF THE INSANE ASYLUM. 2186. Under control nfJxiard if directors. Sec. 2136. The insane asylum, located at Stockton, is under the management (a) Repealed section: Sec. 2112. The annual salary of the armorer 1b elgLtorn hundred dollars. 272 PUBLIC INSTITUTIONS. 2136-2151 and control of a board of directors, consisting of five persons appointed and holding their oflSces as provided in Title I, Part III of this Code. [See ante, 368, 369.] 2137. Powers and duties of hoard. Sec. 2137. The powers and duties of the board of directors of the insane asylum are as follows : 1. To make by-laws, not inconsistent with the laws of this state, for their own government and the government of the asylum; 2. To hold stated meetings at the asylum for the transaction of business on the first Monday in each month; 3. To keep a record of their proceedings, open at all times to the inspection of any citizen; 4. To elect a medical superintendent, two assistant physicians and a treasiu'er. 5. To provide on the asylum grounds suitable apartments, furniture, pro- visions, and lights for the medical superintendent, assistant physicians, and their families; 6. To make diligent inquiry into the departments of labor and expense, the condition of the asylum and its property; 7. To report to the governor a statement of the receipts and expenditures, the condition of the asylum, the number of patients under treatment, and of such other matters touching the duties of the board as is advisable. 2138. Moneys for support of asylum, how draivn. Sec. 2138. If the board approve the estimates made under the provisions of section 2153, it must notify the controller of state, who must draw his warrant for the amount estimated in three equal sums out of any moneys in the state treasury appropriated for the use of the asylum. 2139. Board 7nust contract for supplies. Sec. 2139, Upon the receipt of each report provided for in subdivision 5 of Bection 2152, the board of directors must advertise for contracts for furnishing the supplies therein specified, for three successive weeks, in one newspaper in each of the cities of Stockton, Sacramento, and San Francisco. The contract must be awarded to the lowest bidder, upon his giving satisfactory security for the faithful performance of the same. 2140. Compensation of directors. Sec 2140. The compensation of the directors is ten dollars each for every day spent in attending or traveling to the meetings of the board; not, however, to exceed one hundred and thirty dollars annually to each member. ARTICLE II, MEDICAL SUPERINTENDENT. 2150. Qualifications of. Sec 2150. The medical superintendent must be a graduate in medicine, and must have practiced his profession five years after the date of his diploma. 2151. Term of office. Sec 2151. His term of ofiice is four years from and after his election. 2152. General powers and duties. Sec 2152. He is the chief executive ofiicer of the asylum, with powers and duties as follows : 1. To control the patients, prescribe the treatment, and prescribe and enforce the sanitary regulations of the asylum; 18 273 2152-21G8 POLITICAL CODE. 2. A\'ith the consent of the board of directors, to fix the number and com- pensation of, and ai^poiut, control, and remove the attendants and assistants; 3. To prescribe and enforce the performance of the duties of the attendants and assistants; 4. To prescribe and enforce the performance of the duties of the assistant jihysicians; 5. To ascertain and report to the board of directors the amount, character, and quahty of provisions, fuel, and clothing requii'ed for the six months ending on the lir.st of ]\Iay and November in each year; G. "With the consent of the board of directors to make an}' expenditure neces- sary in the performance of his duties, except for provisions, fuel, and clothing; 7. To receive and pay to the treasurer all moneys found upon insane persons; 8. To keep a daily record of his official acts in the mode prescribed by the by-laws; 9. To make up his annual accounts to the first of July in each year, and as soon thereafter as j)ossible to report a statement thereof, and of the general condition of the asylum, to the board of directors. 2153. Jlust estimate expenses and report to directors. Sec. 2153. He must estimate, quarterly, in advance, the probable expenses of the asylum, and submit such estimate to the directors, at their stated meet- ings, for their consideration and approval. 2154. Salary. Sec. 215-4. The annual salary of the medical superintendent is thirty-five hundred dollars. 2155. Bond. Sec. 2155. He must execute an official bond in the sum of twenty thousand dollars. Au Act in relation to the superintendent of tlie state insane asylitm. Approved April 1, 1872; 1871-2, 845. Attendance on annual meetings of superintendents oj" American institutions. Section 1. The superintendent of the state insane asylum may attend the annual meetings of the superintendents of American institutions for the insane, and his expenses, not to exceed four hundred dollars per annum, must be audited and allowed by the board of examiners, and paid out of the state treasury. Sec. 2. This act shall be in force from and after its passage. ARTICLE III. ASSISTANT PHYSICIANS. 2165. Qualifications. Sec. 21G5. The assistant physicians must be graduates in medicine. 2166. Term of ofice. Sec. 21GG. Their tenu of office is four years from and after their appointment. 2167. (leneral dalica. Sec. 21G7. They must ijorform the duties and exercise the powers prescribed by the medical superintendent or the by-laws. 2168. Si'idor assistant, when to act as medical superintendent. Sec. 21G8. During the absence or disability of the medical superintendent the assistant longest in commission must perform his duties and exercise his powers. 274 PUBLIC INSTITUTIONS. 2169-2198 2169. Salaries. Sec. 2169. The annual salary of each assistant physician is twenty-five hun- dred dollars. AETICLE IV. TREASURER. 2179. number of board not eligible. Sec. 2179. No member of the board of directors is eligible to the office of treasurer. 2180. Tenure of office. Sec. 2180. The treasurer holds his office at the pleasure of the board of directors. 2181. General duties of. Sec. 2181. It is the duty of the treasurer: 1. To act as secretary of the board of directors; 2. To keep the accounts of the board and of the receij)ts and expenditures; 3. To report on the first Monday in each month to the state board of exam- iners a statement under oath of the expenses of the jDreceding month; 4. To perform such other duties as may be required of him by the by-laws or board of directors. 2182. Salary. Sec. 2182. The annual salary of the treasurer is six hundred dollars. 2183. Bond. Sec. 2183. He must execute an official bond in the sum of twenty thousand dollars. AETICLE V. general provisions. 2193. Salaries, when and out of what fund payable. Sec. 2193. The salaries and compensation fixed by the pro\'isions of this chap- ter must be paid monthly out of the moneys appropriated for the support of the asylum. 2194. Approval and filing of official bonds. ^c. 2194. The official bonds required by the provisions of this chapter must be aiDproved by the board of directors, and filed and recorded in the office of the secretary of state. 2195. Restrictions upon residence of physicians. Sec 2195. The medical superintendent and each assistant physician must reside on the asylum grounds. 2196. Restrictions upon business of physicians. Sec. 2196. The officers mentioned in the preceding section must not engage in the private practice of medicine, but must devote their whole time to the j^er- formance of their duties, unless granted leave of absence by the board of directors. 2197. Discharge of patients on recovery. Sec 2197. Insane persons received in the asylum must upon recovery be dis- charged therefrom. 2198. Insane convicts; reception and return of. Sec 2198. Insane convicts must be received into the insane asylum, and returned to the state prison again, as provided in section 1230 of The Penal Code. 275 2199-2217 POLITICAL CODE, 2199. Restrictions upon admission of non-residents. Szc. 2199. No insaue person, nou-resident of this state, must be received into the asylum unless lie becaiue insane within this state. 2200. Disposition of moneys unexpended at discharge or death of patient. Sec. 2200. If at the time of the discharge of a person from the asylum, or after the death and burial of any person tlierein contined, there remains in the custody of the directors or treasurer any moneys paid for the support or main- tenance of such person, it must, upon demand, be I'epaid. AETICLE YL EXA:^nNATION AND COMMrrTAL OF INSANE PERSONS. 2210. Examination, before ivhom. Sec. 2210. Whenever it appears by affidavit to the satisfaction of a magistrate of the county that any person within the county is so far disordered in his mind as to endanger health, person or property, he miist issue and deliver to some peace officer for service a warrant, directing that such person be arrested and taken before any judge of a court of record within the county for examination. 2211. Two icifnesses. Sec 2211. "When the person is taken before the judge he must issue sub- pcBnas to two or more witnesses, best acquainted with such insane person, to apjjear and testify before him at such examination. 2212. Two physicians. Sec. 2212. The judge must also issue subpoenas for at least two graduates of medicine to appear and attend such examination. 2213. Witnesses, duty of. Sec 2213. At the examination the person subpoenaed must appearand answer all questions pertinent to the matter under investigation. 2214. Physicians, duty of. Sec 2214. The physicians must hear such testimony, and must make a per- sonal examination of the alleged insane person. 2215. Certificate of physicians. Sec 2215. The physicians, after hearing the testimony and making the exam- ination, must, if they believe such person to be dangerously insane, make a certificate, under their hand, showing as near as possible: 1. That such person is so far disordered in his mind as to endanger health, pcr.son, or property; 2. The premonitory symptoms, apparent cause or class of insanity, the dura- tion and condition of the disease; 3. The nativity, age, residence, occupation, and previous habits of tlie])erson; 4. The place from whence the person came, and the length of his residence in this state. 2216. To Ije made on forms, etc. Sec, 221G. The ccvlilicute must be made in the form prescribed by, and, if they can l^e had, upon bhuiks furnished by the medical superintendent of the asylum. 2217. Action ofjudye — Commitment. Sec 2217, The judge, after such examination and certificate made, if he be- lieves the person so far disordered in his mind as to endanger health, person, or property, must make an order that he be confined in the insane asylum. 276 PUBLIC INSTITUTIONS. 2218-2222 2218. Sheriff to deliver insane person, commitment, etc., at asylum. Seo. 2218. The insane person, together with the order of the judge and cer- tificate of the physicians, must be delivered to the sheriff of the county, and by him must be delivered to the officer in charge of the insane asylum. 2219. Money found on insane person to be delivered at asylum. Sec. 2219. Any monej^s found on the jierson of an insane person at the time of arrest must be certified to by the judge and sent with such person to the asylum, there to be delivered to the medical superintendent, who must deliver the same to the treasurer. If the sum exceeds one hundred dollars, the excess must be ai^plied to the payment of the expenses of such person while in the asylum; if the sum is one hundred dollars or less, it must be kept and delivered to the person when discharged, or applied to the payment of funeral expenses if the person dies at the asyhim. 2220. Idiots, imbeciles, etc., not to be admitted. Sec. 2220. No case of idiocy or imbecility, or simple feebleness of mind, must be maintained at, nor must any case of delirium tremens be admitted into the asylum. 2221. Fees of sheriff . Sec. 2221. The person delivering insane persons to the asylum is allowed therefor forty cents per mile, one way only, for the legal distance from the county seat of the county where such insane person was committed to the asylum; and for every additional. patient taken at the same time, twenty cents per mile. He must also receive the necessary exj)ense of an assistant, when more than one person is required to convey such insane persons; jDayment thereof to be made by the state treasurer on the controller's warrants, issued on the ajjproval of the account by the board of examiners. 2222. Fees of physicians. Sec. 2222. The physicians attending each examination of an insane person are allowed five dollars each, to be paid by the county treasiu-er of the county where the examination was had on the order of the board of supervisors. An Act to provide further accommodation for the insane of the State of California, and to provide a special fund therefor. Approved March 27, 1872; 1871-2, 673. [This act provides for the establishment of a new asylum for the insane; for the appointment of commissioners to select a site, and for the construction and management of the institution. The site selected was Napa, and the asylum has been built there. Its management, as provided by this act, has, however, been superseded by the provisions of the act of March 6, 1876, given below. By section 22 of that act, as will be seen by reference to it, this act was con- tinued in force only for a special purpose. Under the circumstances, this act is omitted, except its title and reference as above.] An Act to prohibit the sale of intoxicating liquors within a certain distance of the Napa state asylum for the insane. Approved January 15, 1874; 1873-4, 27. No liquor to be sold within one mile of Napa asylum. Section 1. It shall not be lawful for any person to keep any saloon or bar, or to sell or offer for sale any spirituous or malt liquors, within one mile of the asylum building, now in course of construction upon the jDi'operty in Napa county deeded to the State of California for the site of the Napa state asylum for the insane; and any person so doing shall be guilty of a misdemeanor, and for each offense shall be punished by a fine not exceeding five hundred dollars. 277 2222 POLITICAL CODE. Sec. 2. This act shall take effect and be in force from and after its passage, [See in reference to the subject of the foregoing act, section 172 of the Penal Code, as amended April 3, ISTG; post, 13, 172.] An Act to provide for the completion of the Napa state asylum for the insane and for other pnrposes . Approved March 24, 1874; 1873-4, 565. [This act appropriated ?()00,000 for the completion of the Napa insane asj'lum; legalized contracts then made, and required the asylum to be completed for the sum so api)roj)riated.] An Act to provide for the future management of the Napa state asylum for the insane. Approved March 6, 1876; 1875-6, 133. Governor to appoint five trustees. . Section 1. Within ten days after the passage of this act the governor shall appoint five trustees to manage the affairs of the Napa state asylum for the insane, three of whom shall be residents of Napa county; and he shall designate at the time of the appointment the respective terms of oiEce of said trustees, under the following classification, to wit: three of said trustees shall serve for two years, and two of said trustees shall serve for four j'ears from the time of their appointment. Their successors shall be appointed by the governor, and shall hold their ofiices for the term of four years and until their successors are appointed and qualified. In case of a vacancy occurring in said board, the governor shall appoint, in manner aforesaid, to fill the unexpired term. Trustees to organize. Sec. 2. The tnistees provided for in the preceding section shall qualify by taking the usual oath of office, and shall, within ten days after such qualifica- tion, organize themselves into a board by the election of one of their number as president, and the secretary and treasurer hereinafter provided for, and, as soon as such organization has been j)erfected, they shall notify the same to the "board of directors" created under "An Act to j^rovide further accommodation for the insane of the State of California, and to provide a special fund therefor," approved March twenty-seventh, eighteen hundred and seventy-two, b}' seizing a notice of that fact on the secretary or president of said board of directors. Offices declared vacant. Sec. 3. As soon as the said "board of directors" of the Napa state asylum for the insane shall receive the notification referred to in the jDreceding section of this act, their offices, and also those of all persons receiving appointments by, through, or under them, shall become vacant, and their functions as a board and as directors, officers, and emj^loyees shall cease to exist. Directors to turn over books and joroperty. Sec. 4. Upon receiving the said notification, it shall be the duty of the said "board of directors," their secretary and treasurer, medical suj^erintendent, officers, and employees, to prepare a list of all books, papers, moneys, property, and eflfect.s of eveiy kind and nature whatever belonging to the Naj)a state asylum for the insane, or in their possession, or under their control, and de-^ liver the said list, together with the articles enumerated therein, upon the order of the president of the lioard of trustees created by this act, taking duplicate receipts therefor, and filing one with the state board of examiners. TruHtecH to complete buildiufjs. Sec. o. The trustees created under this act shall, as soon as funds are pro- vided by the legislature, cause the buildings of the Napa state asylum for the insane to be completed, and the grounds and premises to be improved, under plans now existing, as soon as practicable; provided, that such alterations as 278 PUELIC INSTITUTIONS. 2222 will reduce the cost of construction of the said asykim may be made by said board of trustees; but no contracts must be entered into or liabilities incurred beyond the amount appropriated by the legislature. Trustees not to be interested parties. Sec. 6. The trustees and other officers shall have no interest, direct or indi- rect, in the furnishing of any building materials, or in any contract for the same, or in any contract for labor in finishing said buildings, or improving said grounds or premises, nor in any contract for labor, material, or supplies for the maintenance thereof. Powers and duties of trustees. Sec. 7. The board of trustees created under this act shall be known by the name and style of the ' ' board of trustees of the Napa state asylum for the insane," and by that name they and their successors shall be known in law, may receive, take, and hold property, both real and personal, in trust for the state, and for the use and benefit of said asylum! They shall have power to govern, manage, and administer the affairs of said asylum, and make and adopt by-laws for their government and the government of the asylum. They shall appoint all officers and employees of said asylum, prescribe their duties, and remove them when, in their judgment, the good of the public service requires it. They shall cause to be kept a full and correct record of their proceedings, which shall be open at all times to the inspection of any citizen desiring to examine the same. They shall hold stated meetings at the asylum monthly, and a majority of the board shall constitute a quorum for the transaction of business. They shall keep themselves constantly advised of all items of labor and expense, and the condi- tion of the buildings and property of the asylum. They shall submit to the governor biennially, on or before the first day of September next preceding the regular session of the legislature, a report showing the receipts and expend- itures, the general condition of the asylum, the number of patients under treat- ment during the two precediug years, and such other matters touching the gen- eral affairs of the asylum as they may deem advisable. Trustees to appoint resident and assistant physicians — Salaries and qualifications of physicians. Sec. 8. The board of trustees shall appoint a resident pjiysician and an assistant physician, each of whom shall hold office for four years, and until his successor is elected and qualified. The salary of the resident physician shall be three thousand dollars per annum, and of the assistant physician two thou- sand dollars per annum; and each of them and their families shall be furnished room, household furniture, provisions, fuel, and lights, at and from the supplies of the asylum. Both the resident and assistant physicians shall reside at the asylum; shall be well educated and experienced physicians, regular graduates in medicine, and shall have practiced at least five years from the date of their respective diplomas, and shall not engage in outside practice. Their duties not specified in this act shall be fixed and prescribed in the by-laws of the board of trustees. Trustees to elect treasurer. Sec 9. The board of trustees shall elect a treasurer, who shall not be of their number, and who shall hold office for two years, and until his successor is elected and qualified. The treasurer shall qualify by taking the usual oath of office, and shall give bond, with good and sufficient sureties, to be approved by the board, in a sum not less than thirty thousand dollars, payable to the people of the state of California, and conditioned for the faithful performance of his duties according to law, and for the delivery to his successor of all books, papers, vouchers, moneys, and effects held by him in virtue of his office. The 279 2222 POLITICAL CODE. board of tnistees may increase the amount of the bonds of the treasurer, and may require additional security at any time; and they may remove him. The treasurer shall act as secretary of the board of trustees, and have charge of the books and accounts of the asylum, and all matters of finance relating thereto. He shall keep accurate account of all expenditures, under appropriate headings, takiug vouchers for all moneys paid out, and make a detailed statement under oath each mouth to the state board of examiners of the expense of the preced- ing month, and shall perform such other duties as the board may prescribe. His salary shall be fixed by the board of trustees, not to exceed six hundred dollars per annum. Compeiisafion and mileage of bitstees. Seo. 10. Each trustee shall receive as his compensation ten dollars for each meeting of the board at which he shall be present, payable out of any moneys api)ropriated to the use of the asylum; provided, that the sum paid to the said trustee shall not exceed one hundred and thirty dollars per annuni; and pro- vided further, that any tiaistee whose residence is out of the count^ in which said asylum is situated shall be allowed, for traveling expenses, mjl'eage at the rate of ten cents per mile for the distance necessarily traveled in attending the monthly meeting of the board. Besident jjhysicimi to be executive officer. Sec. 11. The resident physician shall be the executive officer of the asylum, under the regulations and by-laws of the trustees. He shall have control of the patients, prescribe or direct their treatment, adopt sanitary measures for their welfare, and discharge such as, in his opinion, have permanently recovered their reason. He shall maintain discipline among the subordinate officers and em- ployees, and enforce obedience to the laws, rules, and regulations adopted for the government of the institution, and is empowered to discharge any employee or attendant for violation of the laws or rules of the asylum. He shall estimate quarterly, in advance, the probable expenses of the asylum, and submit the same to the board of trustees, at their last regular meeting preceding the com- mencement of such quarter, for their approval. And the controller of state is hereby authorized and directed to draw his warrants for the amount of such estimate, approved by the trustees, as soon as the same shall have been approved by the state board of examiners, in three equal sums, in favor of the board of trustees. And the state treasurer is authorized and directed to pay the same out of au}' moneys approjoriated by law for the use and benefit of said asylum. He shall estimate and report to the trustees the amount, kind, and quality of furniture and household furnishing goods, provisions, fuel, forage, clothing, and other materials required for the six months ending on the first day of May and November of each year; and the trustees shall then advertise for four suc- cessive weeks for contracts for furnishing said supplies. All contracts shall be awarded to the lowest bidder or bidders, upon their giving to the board of trus- tees satisfactory security for the faithful performance of the same. Necessary expenditures, other tlian those for provisions, fuel, forage, clothing, and furni- ture, and household furnishing goods, may be made by the resident i^hysician, subject to the api)roval of the board. Monthly report of plnjaician. Sec. 12. The resident physician shall cause accurate and careful accounts to be ke])t of the daily expenditures of all articles of stores and property placed in his charge, and shall, at the end of each month, submit the same to the board of trustees for their inspection ; and on each daily report shall be shown the number of persons fed and lodged in the asylum, whether as officers and their families, emjiloyees or patients. A monthly report of the same tenor shall also be made to the trustees. 280 PUBLIC INSTITUTIONS. 2222 Pay-roll. Sjeo. 13. At the end of each montli the resident j)hysician shall cause a pay- roll to be made, which shall show the name of each person employed in or about the asylum, giving the capacity in which each is employed, the time em- ployed, the rate of salary or wages, and the amount due each. Upon receiving this roll, sworn to and certified by the resident physician and approved by the president of the board, the treasurer shall ■pa.j the j^ersons named on the roll the sums due them, taking their receipts on the roll for the moneys received, which roll, so receipted, shall be his voucher. Bills, hoiv audited and paid. Sec. 14, All bills against the asylum shall be presented to the treasurer, and be by him submitted to the board of trustees at their next regular meeting after presentation, and shall be by them audited and aj^proved before they are paid; and no money shall be paid out by the treasurer, except as provided in the last section, unless ordered by the board, and the order entered upon their minutes. Treasurer to report. Sec. 15. At every stated meeting of the board the treasurer shall present a clear and detailed statement of all moneys received and paid out by him, with vouchers regularly numbered to show for the payments — the statements to classify all receipts and exj)enditures under appropriate and intelligible heads. He shall also present his books, and show that they are written up to date, properly posted, and the balance of cash in his hands belonging to the asylum shown. Trustees to examine accounts. Sec 16. The vouchers, statements, and books of the treasurer shall be ex- amined by the board of trustees at each stated meeting, and if found correct and kept in accordance with the provisions of this act and the by-laws, the president of the board shall give the treasurer a certificate of the fact, and cause a note of it to be made in the minutes of the board. The minutes of each meeting of the board shall be approved by the board and signed by the secretary and president. Commitment of insane persons. Sec 17. The county judge of any county in this state and the probate judge of the city and county of San Francisco, shall, upon application under oath, setting forth that a person by reason of insanity is dangerous to be at large, cause such person to be brought before him, and he shall summon to appear at the same time and place two or more witnesses who well knew the accused during the time of the alleged insanity, who shall testify under oath as to con- versation, manners, and general conduct upon which said charge of insanity is based; and shall, also, cause to appear before him, at the same time and place, two physicians, who shall be regular graduates in medicine, before whom the judge shall examine the charge; and if, after a careful hearing of the case and a personal examination of the alleged insane person, the said physicians shall certify on oath that the person examined is insane, and the case is of a recent or curable character, or that the said insane person is of a homicidal, suicidal, or incendiary disposition, or that from any other violent symptoms the said insane person would be dangerous to his or her own life, or the lives or property of the community in which he or she may live; and if said physicians shall also certify to the name, age, nativity, residence, occupation, length of time in this state, state last from, previous habits, premonitory symptoms, apparent cause and class of insanity, duration of the disease and present condition as nearly as can be ascertained by inquiry and examination; and if the judge shall be satis- fied that the facts revealed in the examination establish the existence of the 281 2222 POLITICAL CODE. insanity of the person accused, and tLat it is of a recent or curable nature, or of a homicidal, suicidal, or incendiary character, or that from the violence of the symptoms the said insane person would be dangerous to his or her own life, or to the lives or property of others, if at large, he shall direct the sheriif of the county, or some suitable person, to convey to and place in charge of the officers of the insane asylum of this state to which the order is directed, such insane person, and shall transmit a copy of the complaint and commitment, and physicians' certificate, which shall always be in the form as furnished to the com-ts by the resident physician of said asylum; and the person taking such insane person to the insane asylum shall be allowed therefor the same fees as are allowed by law to the sheriff in such cases, to be paid in like manner. And the jihysicians attending the examination aforesaid shall be allowed, by the board of supervisors of the county in which the examination is had, five dollars each, unless they are otherwise paid. Idiots and imbeciles. Sec 18. No case of idiocy, imbecility, harmless, chronic, mental unsound- ness, or acute mania a potu shall be committed to this asylum; and whenever in the opinion of the resident physician, after a cai'eful examination of tbe case of any person committed, it shall be satisfactorily ascertained by him that the party had been unlawfully committed, and that he or she comes under the rule of exemi')tions provided for in this section, he shall have the authority to dis- charge such person so unlawfully committed, and return him or her to the county from which committed, at the exi^ense of such county. Patients to pny (Jteir exjx'nscs when possessed oj^ means. Sec 19. The judge shall inquire into the ability of insane persons committed by him to the asylum, to bear the actual charges and expenses for the time that such I'jcrson may remain in the asylum. In case an insane person committed to the asylum under the provisions of this act shall be possessed of real or j)er- sonal property sufficient to pay such charges and expenses, the judge shall aj^point a guardian for such person, who shall be subject to all the provisions of the general laws of this state in relation to guardians, as far as the same are applicable; and when there is not sufficient money in the hands of the guardian, the judge may order a sale of property of such insane person, or so much thereof as may be necessary, and from the proceeds of such sale the guardian shall pay to the board of trustees the sum fixed upon by them each month, quarterly in advance, for the maintenance of such ward; and he also shall, out of the pro- ceeds of such sale, or such other funds as he may have belonging to such ward, pay for such clothing as the resident physician shall, from time to time, furnish such insane person; and he shall give a bond, with good and sufficient sureties, payable to the board of trustees, and approved by the judge, for the faithful Ijerfonnance of the duties required of him by this act, as long as the property of his insane ward is sufficient for the purpose. Indigent insane persons having kindred of degree of husband or wife, father, mother, or children, living within this state, of sufficient ability, said kindred shall support such indigent insane person to the extent i^resciibed for paying patients. The board' of trustees shall furnisli sucli blank bonds as are required by this section, to the several county judges in this state, and to the probate judge in the city and county of San Francisco. A breach of any bond provided for in this act may be prosecuted in the distinct court of any county in this state in which any one of the obligors may reside, and the same sliall be prosecuted by the district attorney of the county in wliich the action shall be brought, and shall be con- ducted throughout, and the judgment enforced, as in a civil action for the recovery of a debt. Should there remain in the hands of the board of trustees 282 PUBLIC INSTITUTIONS. 2222 or their treasurer, at tlie time any insane person is discharged, any money unexpended, so paid by the guardian or kindred, the same shall he refunded; provided, that the board of trustees shall not be required to refund any money for a fraction of a month; but upon the death of any insane person, after paying the ordinary burial exj^enses, the remainder of any moneys received from the guardian, or on deposit with the board of trustees or their treasurer, shall be refunded to the person or jDersons thereto entitled, on demand. Any moneys found on the person of any insane person at the time of arrest shall be certified to by the judge, and sent with such person to the asylum, there to be delivered to the treasurer, to be applied to payment of the expenses of such person while in the asylum; but upon the recovery of such insane person, all sums shall be returned to him when discharged from the asylum. The kindred or friends of an inmate of the asylum may receive such inmate therefrom, on their giving satisfactory evidence to the judge of the court issuing the commit- ment, that they or any of them are capable and suited to take care of, and give proper care to such insane person, and give protection against any of his acts as an insane person. If such satisfactory evidence appear to the judge, he may issue an order, directed to the trustees of the asylum, for the removal of such person; but the trustees shall reject all other orders or applications for the release or removal of any insane person, except the order of a court or judge on j)roceeding in habeas corpus; and if, after such removal, it is brought to the knowledge of the judge, by verified statement, that the person thus removed is not cared for properly, or is dangerous to persons or property, by reason of such want of care, he may order such person returned to the asylum. Non-residents and temporary patients. Sec. 20. Non-residents of this state, conveyed or coming herein while insane, shall not be committed to or supported in the Najja state asylum for the insane; but this prohibition shall not prevent the commitment to and temporary care in said asylum of persons stricken with insanity while traveling or temporarily sojourning in the state; or sailors attacked with insanity upon the high seas, and first arriving thereafter in some port within this state. Transfer of patients. Skc. 21. Until the Napa state asylum for the insane shall be occupied to its entire capacity, the judges who are authorized herein to commit insane persons may order all persons thereafter by them duly examined and declared insane to the Napa state asylum; but the county judges of this state, or the probate judge of the city and county of San Francisco, may order the transfer of any insane person committed from their respective counties from one asylum to the other, upon the joint recommendation and consent of the resident physicians of each, the cost of such transfer to be paid by the guardian or friends of the j^atient transferred. Proceedings against directors and employees. Seo. 22. An act entitled "An Act to provide further accommodation for the insane of the State of California, and to provide a sjiecial fund therefor/' ap- proved March twenty-seventh, eighteen hundred and seventy-two, is hereby continued in force so far only as the same gives or creates a right on the part of the people of this state to proceed against the directors and emj^loyees men- tioned therein, civilly or criminally, for any fraudulent or illegal acts on their part, under the alleged authority of this act; provided, that nothing herein shall be so construed as to repeal the act of March twenty-fourth, eighteen hundred and seventy-four, entitled " An Act to provide for the construction of the Napa state asylum for the insane, and for other j)ur2)oses," or any pai't thereof. Sec. 23. This act shall take effect from and after its passage. 283 2222-2241 POLITICAL CODE. An Act to appropriate four hundred and ninety-four thousand dollars to pay the valid and equitable claims against the state, incurred in building the Napa state asylum for the insane, and to complete said structure, supply water therefor and improve the grounds on which it is situate. Approved, April 1, 1876; 1875-G, 804. [This net, besides appropriutiug money as iudicated in the title, required the trustees to investif^ate all claims for indeljtedness incurred by the board of directors appointed under the act of March 27, 1872. A fm-ther sum of $48,000 was appropriated for paying- outstanding liabilities and coveiing deficiencies by act of April 3, 187G; 1875-G, 851.] An Act to provide a supply of water for the Napa state asylum for the insane. Approved April 3, 1876; 1875-6, 8b3. [This act provided for the condemnation for the purpose of supplying water to the asylum of any springs and natural sources of water supply within a mile and a half of the asylum grounds.] CHAPTEK II. DEAF, DUMB, AND BLIND ASYLUM. Abticle I. General Provisions 2237 II. Board of Directors ." 2254 III. Principal Teacher 2267 IV. Treasurer 2280 ARTICLE L general provisions. 2237. Object of asylum. Sec. 2237. The deaf, dumb, and blind asylum, located in Alameda county, has for its object the education of the deaf, dumb, and blind. 2238. Who enlitled to its benefits. Sec. 2238. Eveiy deaf, dumb, or blind person resident of this state, of suit- able age and capacity, is entitled to an education in this asylum free of charge. 2239. Same. Sec. 2239. Such i:)ersons not residents of this state are entitled to the benefits of this asylum upon paying to the treasurer thereof eighty-five dollars quarterly in advance. 2240. Clothinrj and maintenance of pupils. Sec. 2240. If the parents or guardian of any piqnl in the asylum for the deaf, dumb, and blind, shall be unable to clothe such child, the parent or guardian may testify to such inability before the judge of the county wherein he or she is resident, and if said judge is satisfied that the parent or guardian is not able to provide suitable clothing for the child, he shall issue a certificate to that effect; and, upon i)resentation of such certificate, it shall be the duty of the directors of said asylum to clothe the child, the expenses to be paid out of appropri- ations made for the support of the asylum. All pupils in the asylum shall be maintained at the e.\pense of the state. [Amendment, approved March 18, 1874; Amendments 1873-4, 115; took effect from passage. '-"^ 2241. Jtlindness and deafness defined. Sec 2241. Inability by reason of defective sight to read ordinary printed matter is blindness, and inability to hear ordinary conversation is deafness, within the meaning of this chapter. la) Orii;iuu\ sf-ftlon: 8x0. 2240. The pupilH lu the QByluin aro clothed ttnd mnlntalned at the expense of the state. 284 PUBLIC INSTITUTIONS. 2242-2256 2242. Geological cabiriet. Sec. 2242. The state geologist and regents of the university will make up from duplicate specimens under their control a geological cabinet for the use of the asylum. 2243. Salaries, hoiv paid. Sec. 2243. The salaries mentioned in this chapter must be paid monthly out of the moneys appropriated for the support of the asylum. 2244. Approval and filing of official bonds. Sec. 2244. The official bonds reqviired by the provisions of this chapter must be approved by the board, and filed and recorded in the office of the secretary of state. ARTICLE II. BOAED OP DIRECTORS. 2254. Under control of board of directors. Sec. 2254. The asylum is under the management and control of a board of directors, consisting of five persons, appointed and holding their offices as pro- vided in Title I of Part III of this Code. [See ante, 368, 369.] 2255. Powers and didies of board. Sec 2255. The powers and duties of the board are as follows: 1. To make by-laws not inconsistent with the laws of the state, for their own government, and the government of the asylum; 2. To elect the principal teacher; 3. To elect a treasurer, who shall not be a member of the board of directors; 4. To elect a physician for the asylum for the term of two years, who shall not be a member of the board of directors; 5. To remove, at pleasui-e, any teacher or employee; 6. To fix the compensation of teachers and emjiloyees; 7. To make diligent inquiry into the departments of labor and expense, the conditions of the asylum, and its prosperity: 8. To hold stated meetings at the asylum at least once in every three months; 9. To keep a record of their proceedings; 10. To report to the governor a statement of the receipts and expenditures, the condition of the asylum, the number of pupils, and of such other matters touching the duties of the board as they may deem advisable. [Amendment, approved March 30, 1874; Amendments 1873-4, 36; took effect July 6, 1874.^^' An Act to confer certain powers upon the directors of the deaf, dumb, and blind asylum. Approved April 1, 1876; 1875-6, 686. Directors to invest money. Section 1. The directors of the deaf and dumb and blind asylum are hereby authorized and empowered to take, receive, manage and invest all moneys and property heretofore or hereafter bequeathed or donated to the said asylum, in accordance with the washes of the testator or donor, or if no conditions are at- tached to the bequests or donations, to invest svich money or proceeds of prop- erty for the best interests of the asylum. Sec 2. This act shall take effect on and after its passage. 2256. Approval of estimates and drawing moneys appi'opriated. Sec 2256. If the board approve the estimates made under the provisions of section 2268, it must notify the controller of state, who must draw his warrant (a) The original section had nine subdivisions, board of directors" in the third. In the last subdi- omitting the one numbered fourth in the amendment, vision it had the word "is" instead of "they may and the -words " who shall not be a member of the deem." 285 2250-2281 POLITICAL CODE. for the amount estimated, in three equal sums, payable to the board monthly, out of any moneys in the state treasury appropriated for the use of the asylum. 2257. Directors to receive no salary. Sec. 2257. The dii-ectors receive no compensation. ARTICLE III. PRINCIPAl, TEACHEB. • 2267. QuaJiJJcafions. Sec. 22G7. The principal teacher must have not less than three years' expe- rience in the art of teaching the deaf, dumb, and bhnd. 2268. rovers and duties. Sec. 22G8. He is the chief executive officer of the asylum, with powers and duties as follows: 1. To superintend the grounds, buildings, and property of the asylum; 2. With the consent of the board of directors, to fix the number of and ai:)point and remove the assistant teachers and emi^loyees; 3. To prescribe and enforce the performance of the duties of the assistant teachers and employees; 4. To control the pupils and prescribe and enforce a system of instruction; 5. To reside at the asylum; 6. To keep a daily record of his official acts in the manner presci'ibed by the by-laws; 7. To estimate quarterly in advance the expenses of the institution, and report such estimate to the board of directors; 8. To make up his annual accounts to the first of July in each year, and as soon thereafter as possible report a statement thereof and of the condition of the asylum to the board of directors. 2269. Salary. Sec. 22G9. His annual salary must not exceed three thousand dollars. 2270. JUmd. Sec 2270. He must execute an official bond in the sum of five thousand dollars. ARTICLE IV. TREASURER. 2280. Duties of. Sec 2280. It is the duty of the treasurer: 1. To act as secretary of the board of directors; 2. To keep the accounts of the board and of the receipts, expenditures, assets and liabilities of the asylum; 3. To report quarterly to the board a statement under oath of the receipts and expenditures of the preceding quarter; 4. To perform such other duties as may be required of him by the by-laws or board of directors. 2281. Salary. Sec. 2281. The annual salai-y of the treasurer is five hundred dollars. 2232. nond. Sec 2282. He must execute an official bond in the sum of ten thousand dollars. [Appropriations to the deaf, dumb and blind asylum, and for the education and care of the indigent deaf, dumb and blind will be found in act of January 25, 1872; 1871-2, 34; April 1, 1872; 1871-2, 743; March 30, 1874; 1873-4, 898; February 15, 187G; 1875-G, 53; March 31, 187G; 1875-G, 593, 747.] 28G PUBLIC INSTITUTIONS. 2282-2296 An Act to provide a supply of water for the university, aucl for the asylum for the deaf, dumb and blind. Approved April 1, 1876; 1875-6, 816. [This act provided for the condemnation for the use of the university and asylum for the deaf, dumb and blind, of any springs and natural sources of water supply within a mile and a half of the university grounds.] CHAPTER III. STATE LIBRARY. 2292- Board of trustees, and term of office of. Sec. 2292. The state library is under the control of a board of trustees, con- sisting of five members, elected by the legislature in joint convention assem- bled, and holding their o£&ces for the term of four years. 2293. General powers and duties of hoard. Sec. 2293. The powers and duties of the board are as follows: 1. To make rules and regulations not inconsistent with law for their govern- ment and for the government of the library; 2. To appoint a librarian; 3. Whenever necessary to authorize the librarian to appoint an additional deputy; 4. To sell or exchange duplicate copies of books; 5. To keep in order and repair the books and proj^erty in the libraiy; 6. To draw from the state treasury at any time all moneys therein belonging to the library fund. 7. To report to the governor biennially a statement of their transactions. 2294 Term of office of librarian. Sec. 2294. The librarian holds his office for the term of four years, unless sooner removed by a unanimous vote of all the trustees. 2295. General duties of librarian. Sec. 2295. It is the duty of the librarian: 1. To be in attendance at the library during office hours; 2. To act as secretary of the board of trustees, and keep a record of their proceedings; 3. To purchase books, maps, engravings, paintings, and furniture for the library ; 4. To number and stamp all books and maps belonging to the library, and to keep a catalogue thereof; 5. To have bound all books and papers that require binding; 6. To keep a register of all books and property added to the libraiy, and of the cost thereof; 7. To keep a register of all books taken from the library; 8. To establish and maintain a system of domestic and foreign exchange of books, and to obtain from the secretary of state svxch numbers of all state publica- tions as may be sufficient to meet the demands of the system established. [Amendment, approved March 30, 1874; Amendments 1873-4, 37; took effect July 6, 1874.^*' 2296. Who may take books. Sec. 229G. Books may be taken from the libraiy by the members of the legislature during the sessions thereof, and by other state officers at any time. (a) The original section did not have the eighth subdivision. 287 2297-2305 POLITICAL CODE. 2297. Books taken by members of legislature, when to be returned— Duties oj con- troller in relation to. Sec. 2297. Books taken by members of the legislature must be returned at the close of the session; and before the controller draws his warrant in favor of any member of the legislature for his last week's salary, he must be satisfied that such member has returned all books taken by him and paid for any inju- ries thereto. 2298. Books taken by state officers to be returned, or salary not to be paid. Sec. 2298. The controller, if notified by the librarian that any officer has failed to return books taken by him within the time prescribed by the rules, and after demand made, must not draw his warrant for the salary of such officer until the return is made, or three times the value of the books, or of any injuries thereto, has been paid to the librai-ian. 2299. Liability for injuries to books. Sec 2299. Eveiy person who injures or fails to return any book taken is liable to the librarian in three times the value thereof. 2300. Library fund. Sec. 2300. The state library fund consists of the fees collected and paid into the state treasury by the secretary of state and surveyor-general. [Ameiul- ment, approved IlarchdO, 1874; Amendments 1873-4, 38; took effect from passage. '-^^ 2301. Library, time to be kept open. Sec. 2301. During the session of the legislature and of the supreme court, the library must be kept open every day from nine o'clock a. m. until nine o'clock p. M., and at other times during such hours as the trustees may direct. 2302. Salary of librarian. Sec. 2302. The annual salary of the librarian is«three thousand dollars. 2303. Salary of deputies. Sec. 2303. The annual salary of each deputy is eighteen hundred dollars. 2304. Bond of librarian. Sec. 2304. The librarian must execute an official bond in the sum of three thousand dollars. 2305. Mlien this chapter takes effect. Sec 2305. This chapter shall be in force and effect from and after the first day of May, eighteen hundred and seventy-two. Au Act to provide for the establishment of a cabinet department in the state library. Approved April 1, 1872; 1871-2, 824. Librarian to arrange cabinet. Section 1. It shall be the duty of the state librarian to receive, arrange and properly display, and take charge of, in the state library, the minerals, precious metals, mineralogical, geological and fossiliferous specimens and precious stones hereinafter mentioned and referred to, or which may hereafter become the property of the state by purchase or by presentation. Purchase of cabinet. Sec 2. The governor shall appoint three suitable and disinterested persons, who shall act without compensation, and shall examine and ai:)praise the cabinet of minerals, precious metals and stones, and various specimens com2:)Osing the cabinet belonging to J. M. Frey, of the city of Sacramento; and, upon their making report to the gfnernor to the effect that the said cabinet is fully worth the sum of thirteen thousand dollars, the state shall become the purchaser and (a) The original Bectlon did not have the words " and surveyor-general:" 288 PUBLIC INSTITUTIONS. 2305-2328 owner of the said cabinet; provided, that if said report shall not recommend the said purchase, it shall not be made. Ajyjjropr'iation. Sec. 3. The sum of thirteen thousand dollars is hereby appropriated out of any unappropriated money in the general fund to purchase the said cabinet. Sec. 4. This act shall take effect from and after its passage. CHAPTER lY. SUPREME COURT LIBRARY. 2313. Who may use. Sec 2313. This library is for the use of the justices and counselors at law of the supreme court. 2314. Librarian and his duties. Sec 2314. The secretary of the supreme court, under the superrision of the court, is the librarian, and responsible for the safe keeping of the books. Be- fore used he must mark and number the volumes, and enter them in a catalogue kept in the library. 2315. Who may take books. Sec. 2315. Books may be taken from this library by the justices of the supreme court. At the request of a counselor of the court, the bailiff must take from the library to the court-room books for use in the argument of any cause. 2316. Fund for support of. Sec. 2316. The supreme court library fund consists of fees collected by the clerk of the court, as provided in section 753 of this code, and is under the control of the court. Upon its order the controller must, without the approval of any board, draw his warrant upon the treasurer for the amount specified, and in favor of the person designated in such order, which warrant must be paid out of such fund. CHAPTER V. OTHER PUBLIC INSTITUTIONS. 2326. State agricultural society. Sec 2326. The powers, duties, privileges, and rights of the California state agricultural society are fixed by "An Act to incorporate the state agricultural society, and to appropriate mon^y for its sujDport," approved May thirteenth, eighteen hundred and fifty -four, and the acts supplemental thereto, approved March twelfth, eighteen hundred and sixty-three, and April thirteenth, eighteen hundred and sixty-three. [See post, 15,001.] 2327. University of California — Normal school. Sec 2327. The control and management of the university of California and the state normal school are provided for in Title III of Part III of this Code. [See ante, 1385 and 1487.] 2328. State prison. Sec 2328. The control and management of the state prison is provided for in Part III of the Penal Code. [See post, 14,573.] 19 289 2348-2349 POLITICAL CODE. TITLE YI. Cn.U'TER I. PcBLic Waters 2348 II. HiGUWAYS 2018 III. Toll Roads 2779 IV. Toll Bridges and Ferries 2843 Y. AVharves, Chutes, and Piers 2906 YI. Miscellaneous Provisions relating to Public Ways 2931 CHAPTER I. rUBLIC WATERS. Abticle I. Genkral Peovisions respecting Public Waters 2348 II. Navigation 23G0 III. Floating Lumbku 2389 IV. Wrecks and Wrecked Property 2403 V. Pilots and Pilot Commissioners 2429 VI. Pilot Regulations tor San Francisco, Benicia, and Mare Island 2457 VJI. Pilot Eegulations for Humboldt Bat and Bar 2470 VIII. Port Wardens 2501 IX. San Francisco Harbor and State Harbor Commissioners 2521 X. Harbor Commissioners for Poi:t of Eureka 2567 XI. Sailors and Sailor Boarding Houses 2583 ARTICLE I. general provisions respecting public waters and obstructions therein. 2348. W}ta( v:aters are public ivays. Sec. 2348. Navigable -waters and all streams of sufficient capacity to transport the products of the country are public ways for the purposes of navigation and of such transportation. 2349. Coriain streams and icalers declared navigable, and are piiblic ways. Sec 2349. The following streams and waters are declared public ways: So much of a slough as lies between Simon's canal, in the town of Alviso, and the bay of San Francisco. Petal unia river, from its mouth to a distance one third of one mile above Washington street, in the city of Petaluma. The Sonoma river, between its mouth and a point opposite Fowler's hotel, in the town of San Luis. The Napa river, between its mouth and the toll bridge. The Suisun river, between its mouth and the town of Suisun embarcadero. The Sacramento river, between its mouth and the mouth of Middle creek. Feather river, between its moulh and a point fifty feet below the bridge crossing Feather river first above tlic mouth of the Yuba river. The Yuba river, between its mouth and a point at the mouth of the slough at the foot of F street, in the city of Marysville. The San Joaquin river, between its mouth and Sycamore point. I See act of February 21, 1872, at end of this section.] The Stockton slough, between its mouth and the west line of El Dorado street, in Stockton. The Mokelumne river, between its mouth and the first falls. The Tuolumne river, between its mouth and Dickinson's ferry. 29U PUBLIC WAYS. 2349 Deer creek, between the liouse of Peter Lassen and its mouth. Big river, three miles from its mouth. Noyo river, three miles from its mouth. Albion river, three miles from its mouth. San Antonio creek, in the county of Alameda, from its mouth to the old em- barcadero of San Antonio. The Arroyo del Medo, in the county of Santa Clara, from its mouth to the upper line of the town of New Haven. Mission creek, in the county of San Francisco. Islais creek, in the county of San Francisco, from Franconia landing, near Bay View turn^nke, to its outlet into the bay of San Francisco, and thence easterly' along- tlie southerly line of Tulare street to the city water front on Massachusetts street, of the width of the channel of said creek. That portion of Channel street, in the city of San Francisco, and lying east of and between the easterly line of Harrison street and the water front of the bay of San Francisco, the width thereof to be sixty feet from Harrison to the northeasterly line of Seventh street, and one hundred and forty feet from the northeasterly line of Seventli street to the city front. That certain creek running through tide land survey numbered sixty-eight, and swamp and overflowed land survey numbered one hundred and forty-five, from its mouth to the head of tide- water therein. San Leandro creek, from its mouth at San Francisco bay to Andrews' landing. San Lorenzo creek, from its mouth at San Francisco bay to Roberts' landing. Johnson's creek, from its mouth at San Francisco bay to Simpson's landing. The north branch of Alameda creek, from its mouth to Eden landing. [See act of March 7, 1874, at end of this section.] San Rafael and Corte Madera creeks, in Marin county, from their mouths as far up as tide-water flows therein. The Neuces creek, from its mouth at Suisun bay to a point one half mile above the warehouse of George P. Loucks. Diablo creek, from its junction with the Neuces to a point opposite the ware- house of Frank Such, in Contra Costa county. The Arroyo de San Antonio, or Keyes' creek, in Marin county, from its mouth at Tomales bay to the warehouses on the point at Keyes' embarcadero. [See act of March 24, 1874, at end of this section.] All the streams and sloughs emptying into Elk river, and all streams and sloughs south of Eureka, in Humboldt county, w^hich are now or at any time have been used for the purpose of floating logs of timber, and all the sloughs south of Humboldt point, in said county, that at high water have a depth of two feet of water and wide enough to float and admit a boat carrying five tons or more freight. Novato creek, or estuary, in Marin county, from its mouth to Sweetzer's landing. Salinas river and Elkhorn slough, or Estero Viejo, in Monterey county, from its mouth as far up as tide-water flows. An Act declaring the San Joaquin river and the Stockton slough navigable from and to cer- tain points herein named. Approved February 21, 1872; 1871-2, 117. San Joaquin river and Stockton slough. Section 1. The San Joaquin river, between its mouth and the location of the San Joaquin valley railroad bridge, and the Stockton slough, between its mouth and the west line of El Dorado street in Stockton, are hereby declared naviga- ble streams. 291 2349 POLITICAL CODE. Sec. 2. All acts and parts of acts, in so far as they conflict with this act, are hereby rejDealed. Sec*. 3. This act shall take effect and be in force from and after its passage. An Act declaring a certain creek in Washington township, Alameda county, navigable. Approved March 8, 1872; 1871-2, 307. Creek and Warm Springs in Alameda county. Section 1. It is hereby declared that a certain creek in the townshii) of Wash- ington, Alameda county, California, running up to Warm Springs lauding, and connecting the waters of the bay of San Francisco with said landing, is naviga- ble, and the same shall be kej^t free and open for the purposes of navigation forever. Sec. 2. All acts or parts of acts in conflict with the provisions of this act are hereby rej^ealed. Sec 3. This act shall take effect immediately. An Act to declare Lake Earl in Del Norte conuty navigable. Approved February 4, 1874; 1873-4, 59, Lake Earl in Del Norte county. Section 1. Lake Earl, in Del Norte county and State of California, is hereby made and declared navigable. Sec. 2. This act shall take effect and be in force from and after its passage. An Act declaring Alameda creek in the county of Alameda, a navigable stream, and providing for the removal of obstructions therefrom. Approved March 7, 1874; 1873-4, 308. Alameda creek. Section 1. Alameda creek, from its mouth on the bay of San Francisco to the northwesterly line of Mrs. E. T. Kandall's place, is hereby declared a navigable stream. Removal of ohstructions. Sec 2. Whenever it shall be satisfactorily shown by petition, or otherwise, to the board of supervisors of Alameda county, that by reason of obstructions in the channel or bed, said creek is liable to overflow its banks and damage the land on either side thereof, it shall be their duty to cause said obstructions to be forthwith removed. How done. Sec 3. The removal of said obstructions may be done under the supervision of the road commissioner of the township where said creek is situated, or by a board of commissioners appointed by said board of supervisors. Said commis- sioner or commissioners are duly authorized to remove said obstructions in any manner that may best accomplish the purpose; provided, that in no event sball the growing timber on either bank of said creek be injured or destroyed in the prosecution of said work. Expense fi. Sec 4. All expense, of whatever nature or kind, necessarily incurred in cariying out the provisions of this act, shall be defrayed by the parties peti- tioning therefor. Tlie board of sujiervisors may, if they deem it necessary, require of the petitioners a good and sufficient bond for the faithful perform- ance of the work, as well as for the payment of the cost thereof. In no event shall the cost be a charge ujoon the county treasury. Sec 5. This act shall be in force from and after its passage. 292 PUBLIC WAYS. 2349-2350 An Act to ameud au act entitled An Act to declare navigable the Arroyo de San Antonio, or Keyes' ci'eek, Marin county, approved March 28, 18G0. Approved March 24, 1874; 1873-4, 564. Arroyo de San Antonio, or Keyes' creek, in Marin county. Section 1. Section one of an act entitled An Act to declare navigable the Ar- royo de San Antonio, or Keyes' creek, Marin county, approved March twenty- eighth, eighteen hundred and sixty, is hereby amended so as to read as follows: Section 1. So much of the stream known as the Arroyo de San Antonio, or Keyes' creek, in Marin county, as lies between its mouth, in Tomales bay, and a point three hundred feet above or east of the wharf, in said stream, known as the Ocean Roar wharf, is hereby declared navigable; provided, that should any bridge be erected across the Arroyo de San Antonio by any railroad company, or for highway puriDOses, shall be required to leave a span of at least forty feet over the deepest jjart of said creek for the passage of lighters and other boats plying thereon. Sec. 2. This act shall be in force from and after its passage. An Act declaring the " Moro Cojo" slough navigable. Approved March 30, 1874; 1873-4, 790. Moro Cojo slough, in Monterey county. Section 1. The "Moro Cojo" slough, in the county of Monterey, is hereby declared to be a navigable stream from a point where said slough enters the Sa- linas river to tide-water. Sec. 2. This act shall take effect immediately after its passage and approval by the governor. An Act declaring Gallinas slough, or creek, in Marin county, navigable. Approved March 25, 1876; 1875-6, 483. Gallinas slough, in Marin county. Section 1. The slough or creek situated in Marin county, known as Gallinas, or Guyanas slough or creek, is hereby declared navigable from its mouth up to the line of the Sonoma and Marin railroad. Sec. 2. This act shall take effect from and after its passage. 2350. Penalty for felling trees into public waters. Sec. 2350, Whoever cuts or causes to be cut down any tree, so that it falls into any stream or other waters declared by statute to be a public way, and does not remove it therefrom within twenty-four hours thereafter, is liable to a pen- alty of five dollars for each tree. An Act to provide for the location of tow paths along the banks of navigable streams. Approved April 1, 1872; 1871-2, 940. Authority given. Section 1. The board of supervisors of each county in the state may, when public convenience for the purj^ose of commerce requires it, cause to be located and opened a tow path, not exceeding ten feet in width, along the bank or banks of any navigable stream within the county. Viewers. Sec 2. Tn order to locate and open such tow path, the same proceedings in regard to petition, viewers, etc., shall be taken as are now by law required to be taken in the respective counties of this state for the purpose of locating and opening public roads and highways. Water frontage. Sec 3. The owner or owners of any land over which a tow path shall be located and opened, shall not be deprived of the water frontage nor of the free 293 2350-2368 POLITICAL CODE. use and enjoyment of .iny land so located, subject only to tlie right of the pubKc to use the same for the pm-poses of commerce. Fences. Sec. 4. It shall not he necessary to construct or maintain fences on either side of any tow path so located, but the board of supen-isors may make all necessary rules and regulations for the government and management of tow paths, and may provide for the erection of gates thereon and for the full and complete pro- tection of the property through which the same passes. Sec 5. This act shall take effect from and after its passage. ARTICLE II. NAVIGATION. 2360. Sf earners meetwg. Sec. 23G0. When steamers meet each must turn to the right, so as to pass without interference. 2361. Landing and receiring passengers by small boat. Sec. 2301. "When a passenger is to be landed from a steamer by means of a small boat, he must not be suffered to get into it until it is completely afloat and wholly disengaged from the steamer, except by the painter. 2362. Lines used for landing not to be draivn by machinery . Sec 23(52. No line used for the pui'pose of landing or receiving passengers must be attached in any way to the machineiy of any steamer, nor must the small boat used for such purpose be hauled in by means of such machinery. 2363. The engine to be stopped. Sec 2303. During the landing and receiving of a passenger, and the going and returning of the small boat for the purpose, the engine must be stopped, and must not be put in motion, except to give sufficient force to keep the steamer in a proper direction and safe position. 2364. Boats, oais and signals. Sec. 23(54. In eveiy small boat there must be kept a good and suitable pair of oai-s; and in the night time a signal, by means of a horn or trumpet, must be given to the steamer from the small boat, when having landed or received its passengers, it is ready to leave the shore. 2365. Steamers overtaking. Sec. 2305. A steamer going in the same direction with another steamer ahead of it must not approach or pass the other within the distance of ten yards; and the steamer ahead must not be so navigated as unnecessarily to bring it within ten yards of the steamer following. 2366. Steaviers to carry signals at night. Sec 23GG. "When any steamer is running in the night time her master must cause her to carrj' two conspicuous lights; one exjiosed near her bow and the other near her stern; the latter must be at least twenty feet above her deck. 2367. Penalties, what amount. Sec 23G7. Ever}' master or other person in charge who violates any of the provisions of the preceding seven sections, incurs a penalty of two huudi'ed and fifty dollars for each offense. 2368. Vessels at anchor to show lights. Sec 23G8. "When any vessel is at anchor in the night time in any of the harbors or ports within the jurisdiction of this state, the master or other person at the time in the charge of the vessel must cause a conspicuous light shown in her rig- 294 PUBLIC WAYS. 2368-2377 ging at least twenty feet above lier deck, and another light from her taffrail, under penalty of fifty dollars for every neglect. 2389, No recovery for collision in case of neglect. Sec. 23G9. Neither the master or owner of any vessel can recover damages for injuries to the same or to himself by a collision growing out of a non-com- pliance upon its part with the provisions of the preceding six sections. 2370. Rafts on the Sacramento and San Joaquin rivers. Sec. 2370. Every raft of timber floated on the Sacramento or San Joaquin rivers at night must show two red lights, one at each end, and at least ten feet above the upper logs or plank of such raft, under penalty of fifty dollars for every neglect. 2371. Vessels to carry what boats. Seo. 2371, Every vessel proj)elled by steam, navigating any waters of this state and cariying passengers, must be provided with boats as follows: 1. If of five hundred tons measurement, one first-class life boat; one row boat, twenty-five feet long by seven wide, capable of carrying fifty persons each; and at least one other good row boat; 2. If of two hundred and fifty and less than five hundred tons measurement, at least two ordinary row boats; 3. If of less than two hundred and fifty tons burden, at least one small row boat. All which boats must be attached in such manner that they can be launched at any time for immediate use. 2372. Penalty, what amount. Sec 2372. The master and owners, and each of them, of any vessel not pro- vided with boats as required in the preceding section, are subject to a penalty of not exceeding two hundred and fifty dollars. 2373. Racing, penalty for. Sec. 2373. If the master or other person in charge of a steamer navigating any of the waters of this state and used for the conveyance of passengers, or if the engineer or other person in charge of the boiler or other apparatus for the generation of steam does, for the purpose of increasing speed or excelling any other vessel in speed, suffer to be created an undue or an unsafe quantity of steam, he is subject to a penalty of five hundred dollars. 2374. Steamboats to wear spark catchers. Sec 2374. All high-pressure steamboats navigating the Sacramento and San Joaquin rivers, or any of their tributaries above the mouth of the San Joaquin river or the city of Sacramento, must have secm-ely attached to theii- chimneys metal bonnets or spark catchers. 2375. Bispectors to supervise and direct spark catchers. Sec 2375. All such bonnets or spark catchers must be constructed under the direction and supervision of the United States inspectors of steamboats for the district of San Francisco. 2376. Compensation of inspectors. Sec 2376. For each bonnet or spark catcher worn by any steamboat in- spected or constructed under the direction of and certified to by the inspector, he may receive from the owner thereof ten dollars as a compensation for his services for such direction, supervision, or inspection and certificate. 2377. Neglect of duty and penalty therefor. Sec 2377. Every owner or master who navigates a steamboat without bonnets or spark catchers inspected and attached as required by the preceding three 295 2377-2393 POLITICAL CODE. sections, is subject to a penalty of twenty dollai's for each day he navigates his boat without the same. The owner of such boat is further liable for all damage done by reason of such neglect. 2378. Owner liable for masfer's or engineer's penalties. Sec. 2378. The owners of every steamboat are responsible for the good con- duct of the master or other person in charge employed by them, and they are jointly and severall}' liable for any j)enalty incurred by the master, engineer, or other person in charge, which cannot be collected fi'om him by due course of law, as if they were his sureties. 2379. Penalties, lioiv recovered. Sec. 2379. The penalties given by this article may be recovered by the disti'ict attorney of any county bordering on the water where the offense was committed or the penalty incurred, to whom notice is first given, and when recovered are to be equally divided between the common school and indigent sick fund of the county whose distiict attorney recovers the same. Any judg- ment recovered hereunder is a lien on the vessel against whose owners or master it is recovered. ARTICLE III. FLOATING LUMBER. 2389. Definition of lumber. Sec 2389. The word "lumber" is used in this article to designate all timber, whether in logs, boards, planks, or beams, and whether in rafts or otherwise, but does not include the sort of wood commonly called drift wood. 2390. Owner may reclaim lumber. Sec 2390. Whenever any lumber di-ifts upon any island in any of the waters of this state, or uj^on the bank of any such waters, the owner of the lumber may remove it on payment or tendering to the owner or occupant of the land the amount of the damages which he has sustained by reason thereof, and which may accrue in its removal; and if the parties cannot agree as to the amount of such damages, either party may have the same appraised by two disinterested citizens of the county, Avho may hear proofs and determine the same at the expense of the owner of the lumber. 2391. If not taken axcay, to be turned over to sheriff. Sec 2391. If the owner of such lumber does not, within three months from the time it was so drifted, take the same away, the owner or occupant of the land must deliver a bill of his charges and appraisement of damages, together with the lumber, to the sheriff of the count}^ and thereafter the sheriff must dispose of the same as is required by Article IV of this chapter with regard to wrecked perishable property. 2392. Application of proceeds when sold. Sec. 2392. When sold, the proceeds of the lumber must be applied, first, to the payment of the charges of sale, and in liquidation of the expenses and damages awarded to the person entitled thereto; and the residue must be paid to the county treasurer, to be by him paid over to the owner, or his representa- tive or assigns, on the production of satisfactory proof of ownership to the county judge, and on his order therefor made within one year after its receipt. 2393. Subsequent disposition of proceeds. Sec 2393. The rejection by the county judge of any claimant's right to such proceeds is conclusive, unless within six months thereafter he commences action therefor. In case no claim is made or sustained to such proceeds, the same must, by the county treasurer, Ijo placed in the common school fund of the county. 2UG PUBLIC WAYS. 2403-2409 AKTICLE IV. WRECKS AND WRECKED PROPERTY. 2403. Duties of officers and citizens. Sec. 2403. The sheriff in each county must give all possible aid and assist- ance to vessels stranded on its coast, and to the persons on board the same, and exert himself to save and preserve such persons, vessels, and their cargoes, and all goods and merchandise which may be cast by the sea upon the land, and to this end may employ as many persons as he may think proper. All citizens must aid the sheriff when required. 2404. Officers, etc. , entitled to salvage — Salvage not to exceed half value of prop- erty saved. Sec 2404. Sheriffs and all persons employed by them or aiding in the recovery and preservation of wrecked property, are entitled to a reasonable allowance as salvage for their services, and to all expenses incurred by them in the perform- ance of such services, out of the property saved; and the officer having the custody of such property must detain it until the same are paid or tendered. But the whole salvage claimed must not exceed one half of the value of the property or proceeds on which it is charged; and every agreement, order, or adjustment allowing a greater salvage is void, unless ordered and allowed by the county judge. 2405. Owners of wrecked property may reclaim it. Sec 2405. "Wrecked property may be kept or reclaimed, at the time of the wreck, by the owner, consignee, or other person entitled to the possession; but if any person has a just claim for salvage and necessary expenses incurred in saving it, he must be paid before the property is reclaimed. 2406. Sheriff to keep possession until owner found. Sec 2406. The sheriff of every county in which any wrecked property is found, when no owner or other person entitled to possession appears, must take possession of it in the name of the people, cause the value thereof to be appraised by disinterested persons, and keep it in some safe place to answer the owner's claims. 2407. Perishable jiroperty. Sec 2407. If it is in a j^erishable state, the sheriff must apply to the county judge, upon a verified petition, for an order authorizing him to sell it. If the judge is satisfied that a sale of the property would be beneficial to the parties interested, he must make the order applied for, and the j^roperty must then be sold at public auction, at the time and in the manner specified in the order, and the proceeds, deducting the expenses of sale, as the same is settled and allowed by such judge, must be paid to the treasurer of the county. 2408. Order for surrender to claimant. Sec 2408. If, within a year after the finding, any person claims the projierty or its proceeds, and establishes his claim by evidence satisfactory to the county judge, such judge must make an order directing the officer in whose possession the property or its proceeds may be to deliver the same to the claimant, upon the payment of a reasonable salvage and the necessary expenses of preservation. 2409. Claimant to first give bond. Sec 2409. Before making the order, the judge must require from the claim- ant a bond to the people, with one or more sufficient sureties, to be approved by the judge and filed with the county clerk, in a penalty double the value of the property or proceeds, conditioned for the payment of all damages that may be recovered against such claimant or his representatives, within three years after its date, by any person establishing title to the propei-ty or proceeds. 297 2410-2416 POLITICAL CODE. 2410. Aclion on bond. Sec. 2410. If the bond becomes forfeited, the county judge, upon the appli- cation, supported by proof, of the person entitled to the benefit of it, must make an order for its prosecution for such j^erson's benefit, and at his risk and expense. 2411. Owner maij sue, although claim rejected. Sec. 2411. The rejection by the judge of any claim does not preclude the claimant from maintaining an action for the recovery of such property or its pro- ceeds against the ofiicer. If the plaintiff in any such action jirevails, there must be deducted from the damages, in addition to salvage and exjDenses, all the defendant's costs. 2412. Salvage to be stated in loriting. Sec. 2412. Every officer to whom an order for the delivery of wrecked prop- erty or the payment of its proceeds is directed, must present to the claimant exhibiting it a written statement of the claims for salvage and expenses. If the claimant refuses to allow such amount, it must be adjusted as hereinafter pro- vided. 2413. rroceedings to settle disputed claims to salvage. Sec 2413. If in any case the amount of salvage and expenses are not settled by agreement, the county court of the county, on the application of the owner or consignee of the jjroperty, or the master or supercargo having charge thereof at the time of the wreck, or of a claimant having an order therefor, or of a per- son claiming salvage or expenses, must determine the same in a summary way, either by itself hearing the allegations and proofs of the party, or by referring the questions to three disinterested freeholders of the county, who must have the same powers and must proceed in the same manner as referees in civil actions, and whose decisions as to the whole amount and as to the sums to be paid to each person interested must be entered as the judgment of the county court. 2414. Costs of contest. Sec. 2414. The fees and expenses of the contest must be paid by the person upon whose application it was had, and are a charge on the property saved. Each referee is entitled to such per diem and expenses as the county judge may deem just. 2415. Wrecked properixj not claimed to be sold. Sec 2415. If within a year after saving wrecked proj^erty no claimant of the property or its proceeds api)ears, or if within three months after a claim the salvage and expenses have not been paid, or a suit for the recovery of the prop- erty or its proceeds has not been commenced, the officer in whose custody it may be must sell it at public auction, if not already sold, and pay the proceeds of such sale, deducting salvage and expenses, into the treasury of this state, for the benefit of the parties interested; but in no case must any deduction of sal- vage and expenses be made unless the amount has been determined by the county court of the county, a copy of whose oi'der and of the evidence in sup- port tliereof must be transmitted by the judge to the controller. If any money paid to a county treasurer under section 2407 remains in his hands more than a year after it has been paid to him, the same must be paid into the state treasury. 2416. Notice of sale. Sec 241G. Public notice of every sale of wrecked property, under the pro- visions of this chapter, must be published by the officer making the sale for at least two weeks in succession in one or more newspapers printed in the county, 298 PUBLIC WAYS. 2416-2434 or if none is printed therein, tlien by written or printed notices in three of the most public places in such county, posted up at least fifteen days previous to such sale. Every notice must state the time and place of the sale, and contain a j^articular description of the property to be sold. 2417, Notice of wrecked properhj. Sec. 2417. Every sheriff into whose possession any wrecked projierty comes must immediately thereafter publish, for at least two weeks in succession, in one or more of the newspapers printed in this state, a notice directed to all parties in- terested, giving a minute description of the property, and of every bale, box, case, piece, or parcel thereof, and of the marks, brands, letters, and figures on each, and stating where the same then is and its actual condition, and the name, if known, of the vessel from which it came, her master and supercargo, and the place where such vessel then is, and her actual condition. 2418. Expense of notice. Sec. 2418. The expense of publishing notices under the provisions of this chapter is a charge upon the property or proceeds to which it relates. AETICLE V. PILOTS AND PILOT COMMISSIONERS. 2429. Qualifications of pilots. Sec 2429. No person must be appointed a pilot unless he is an American citizen, over the age of twenty-one years, with a practical knowledge of the management of sailing vessels and steamboats, and of the tides, soundiugs, bearings, and distances of the several shoals, bars, rocks, points of land, light- houses, and fog signals of the ports and harbors for which he is appointed, of good moral character, and temperate, with the skill and ability necessary to discharge the duties of pilot. 2430. Commissions and license. Sec 2430. Pilots appointed by commissioners must be carefully examined as to their qualifications, and if found to be qualified and worthy, must receive licenses as pilots for the term of twelve months. "Whenever the commissioners have cause for withholding a renewal of such license, notice thereof must be given to such pilot by the commissioners ten days prior to the expiration of his license. 2431. Pilots to take official oath and give bond. Sec. 2431. Every pilot must execute an official bond in the sum of five thou- sand dollars, to be approved by the officer or board appointing him. The bonds of pilots appointed by commissioners must be filed with such com- missioners. 2432. Vessel, oioner, etc., liable for pilotage. Sec 2432. All vessels, their tackle, apparel, and furniture, and the master and owners thereof, are jointly and severally liable for pilotage fees, to be recovered in any court of competent jurisdiction. 2433. Owners to compensate pilots for loss. Sec 2433. If any pilot, in endeavoring to assist or relieve any vessel in dis- tress, suffers loss or damage in his boats, sails, tackle, rigging, or appurtenances, the master, owner, or consignee of such vessel must pay the value of such loss or damage, to be ascertained by the commissioners. 2434. Pilot to show commission or license, ivhen. Sec 2434. Every pilot, on boarding a vessel, when required by the master thereof, must exhibit his commission or license as pilot. A refusal so to do sub 299 2434^2440 POLITICAL CODE. jects him to a forfeiture of his commission or license, and to a recovery of fifty- dollars on his bond in a suit instituted for that i^urpose by the authority ajJiiouitiug him. 2435. Pilots carried to sea or detained. Sec. 2435. Every pilot carried to sea against his will, or unnecessarily de- tained on board of a vessel when a pilot boat is in attendance to receive him, is entitled to receive the sum of eight dollars per day while necessarily absent or detained, not to exceed in the aggregate the sum of one thousand dollars in any one case, which sum may be recovered by action against the master or owner of the vessel so taking him away. 2436. Pilots for ports other than San Francisco, Mare island, Benicia, and Hum- boldt bay. Sec. 243G. Pilots for all the ports in this state, other than San Francisco, Mare island, Benicia, and Humboldt bay, are governed by the following regulations: 1. Thej' must keep, for the jiurj^ose of piloting, at least one boat for every six pilots, in good condition, and seaworthy, sufficiently large to cruise in heavy weather, to be exclusively used as a pilot boat; 2. They must cruise at least ten marine miles seaward from the headlands at the entrance of the port; 3. They shall receive for piloting every vessel into or out of port the sum of eight dollars per foot draught; 4. When the person commanding any vessel refuses to take a pilot, the pilot first offering his services is entitled to half pilotage; 5. For incompetency, neglect of duty, or other good cause, the governor may suspend or remove any pilot appointed by him; 6. They must strictly observe and obey all legally established quarantine regulations. 2437. Further duties of pilots. Sec. 2437. When cruising off or standing out to sea, j^ilots must go to a vessel nearest to shore, or in the most distress, under a penalty of one hun- dred dollars; for refusing to go on board a vessel when required, a like penalty of one hundred dollars ma}' be imposed; in either case, npon conviction, the pilot may be suspended or expelled, at the discretion of the commissioners. 2438. Violating regulations. Sec. 2438. For ever}' violation of the duties and regulations herein specified, the pilot so violating is liable on his official bond to the party aggrieved to the amount of the damages sustained. 2439. Piloting vessels without license. Sec 2439. Any person not the master or owner, and not holding a commis- sion or license as a i)ilot, who pilots any vessel into or out of any harbor or port of this state for which there are commissioned or licensed pilots, must be punished therefor as provided in the Penal Code, section 379, and must pay to the pilot entitled to pilot such vessel the amount of pilotage or towage col- lected by him. 2440. Pdol commissioners for San Francisco, Mare island, and Benicia, hoxo appointed. Sec 2440. There must bo ai:)ioointed by the governor, by and with the advice of the senate, three experienced and competent shipmasters or nautical men, citizens of tlie United States, juid residents in either of the cities of San Fran- cisco, Oakland, Vallejo, or Benicia, or of the towns of Brooklyn or Alameda, a board of pilot commissioners for the ports of San Francisco, Mare island, and Benicia. 300 PUBLIC WAYS. 2441-2457 2441. Pilot commissioners for Humboldt bay and bar, koto appointed. Sec. 2441, There must be appointed by the governor three pilot commis- sioners for Humboldt bay and bar. Two of the persons so appointed must be resident business men and the other a shipmaster or nautical man, and a resi- dent of Eureka, Humboldt county, who must constitute a board of pilot com- missioners for Humboldt bay and bar. 2442. Term of office. Sec. 2442. The commissioners hold their offices during the pleasure of the power appointing them, not exceeding four years from the date of their com- missions. 2443. Boards to organize, and meetings. Sec. 2443. The commissioners miist organize as boards respectively by the election of presidents, secretaries, and treasurers. They must provide for themselves offices, in which they must meet as follows: The " San Francisco board" must meet once a month in the city of San Francisco, and the " Hum- boldt board " must meet at Eureka on the first Mondays in January, April, July, and October. 2444. Powers of president. Sec. 2444. The president of each board is authorized to administer oaths in regard to any matter proj)erly before it and to issue subpoenas in like cases for witnesses. A witness disobeying such subpoena served on him must pay to the board one hundred dollars, for which judgment may be recovered by the presi- dent in a civil action, 2445. Powers of boards. Sec. 2445, Each board must make by-laws and rules for the government of pilots appointed by it; and may adjourn their regular meetings from time to time. The Humboldt board must hold a special meeting on notice of one member, published in a newspaper in Humboldt county five days prior to the proposed meeting. The San Francisco board may appoint a secretary and fix his compensation, not to exceed the sum of two hundred and fifty dollars j^er mouth. The secretary of the Humboldt board must be one of the members thereof, 2446. Secretaries of boards, and records. Sec 2446, The secretary of each board must keep a journal of all its pro- ceedings and acts, and a register of all pilots appointed, their residence and date of license; and must, under order of the board, issue licenses to be signed by the president, and countersign the same. The secretary of the Humboldt board is the treasurer thereof. 2447. Not to be interested in pilot-boats. Sec 2447, Neither the commissioners nor their secretaries must have any interest in any pilot-boat or steam-tug, nor in the earnings thereof, other than for compensation as herein provided. Any one violating this section forfeits his office, ARTICLE YI, PILOT REGULATIONS FOR SAN FRANCISCO, MARE ISLAND, AND BENICIA, 2457. To examine and license pilots and tug-boats. Sec 2457. The board of commissioners must examine and license, in the manner prescribed, not less than fifteen nor more than twenty pilots for the port of San Francisco, and not more than two pilots for the ports of Mare island, Vallejo, and Benicia, exclusive of steam-tug pilots. They must also license for the same ports pilots solely for the purpose of being attached to 301 2i57-24G2 POLITICAL CODE. steam-tug pilot-boats, capable of towing and piloting vessels of such registered tonnage as may be specified in the license. Whenever a steam-tug pilot-boat is licensed, the license must state whetlier it is limited or unlimited. If it is limited to a class of vessels, it must specify the maximum of tons registered measurement of vessels it is licensed to tow or joilot. 2458. Steam tug-boai license. Sec. 2458. Pilots must at all times keep for their exclusive use boats of such description and good condition as directed by the board. Whenever a pilot is licen.sed to be attached to a steam-tug pilot-boat, the license must contain the name of the pilot and the name and steam power of such boat; and in all cases, before the issuing of the license, satisfactory proof must be made to the board that such steam-tug i)ilot-boat is of sufficient power to tow vessels of the tonnage for which it is licensed to and from sea, and to and from San Francisco, Vallejo, Mare island, and Benicia, at ordinary times. Such steam-tug pilot- boats must have all the apj^liances needed for the service for which the}' are to be employed, and must have the certificate of the United States inspector of steamboats. A steam-tug pilot can only act as pilot for and with the steam- tug for which he is licensed, and for piloting and towing vessels of such ton- nage, registered measurement, as may be named in his license. If any steam- tug pilot-boat undertakes to tow or pilot any vessel of a registered tonnage beyond that for which it is licensed, such steam-tug pilot-boat, her tackle and apparel, and the i^ilot and owner thereof, are liable for all damages. 2459. Bu(y of pilots to arrest. Sec. 2459. Every pilot in charge of a vessel arriving in the port or harbor of San Francisco must safely moor the vessel in such position as the master of the vessel or harliormaster may direct. He must jirevent all persons (exce^jt officers of the state or federal governments, owners or consignees of the vessel or cargo, and persons admitted on the express order of the master) from boarding such vessel until she has been safely moored. To enforce the provisions of this sec- tion and other i:)olice regulations for the harbor, every pilot in charge of a vessel entering the harbor of San Francisco is authorized and emj^owered to arrest every one who, in opposition to the master's orders, persists in boarding such vessel, or who, having boarded her, refuses to leave on the command of such master or pilot; when so arrested he must be immediately brought before the police judge's court, or admitted to bail, as provided in the Penal Code. 2460. To render monthly account of pilotage. Six. 2400. Every pilot of the harbors of San Francisco, Mare island, Vallejo, and Benicia, must, once in each month, render to the board an account of all moneys received by him or by any other person for him or on his account, and pay five per cent, thereof to the board, in full compensation for its official services, for the services of its secretary and treasurer, and all incidental expenses. 2461. Board may revoke licen.e attached to and filed with said bonds respectively. The commissioners shall be known as the board of state harbor commissioners; and, after being qualified, shall choose, by ballot, one of their own number president of the board. The commissioners shall appoint as secretary of the board some suitable person, who is not one of their own number, who, before 310 PUBLIC WAYS. 2521-2522 entering upon the duties of his office, shall give a bond, with two or more sure- ties, in the sum of twenty thousand dollars, conditioned for the faithful per- formance of his duties; which bond must be approved b}- the commissioners, by writing indorsed thereon, and he shall also take and subscribe to an official oath, which oath shall be attached to and filed with his bond with the secretary of state. The commissioners shall appoint an assistant secretary, who shall give a bond in the sum of ten thousand dollars, with two or more sureties, conditioned for the faithful performance of his duties, which bond shall be approved by the commissioners, in writing indorsed thereon, and shall also take and subscribe an official oath, which oath shall be attached to and filed with his bond with the secretary of state. The secretary of the board shall keej) the office of the board open every day, from nine o'clodt a. m. till four o'clock p. M., Sundays and holidays excepted. He shall attend the meetings of the board, and record the names of all the commissioners present, and shall keep a clear and distinct record of all their jDroceedings at every meeting. He shall kee]) in suitable books a record of all moneys received and disbursed by the commissioners, and of all agreements and contracts entered into by them, which record shall be open to the inspection of the public during the usual business hours. The secretary shall forward to the controller of state, as often as once in each month, a statement under oath in the form of a balance-sheet, containing a full exhibit of all moneys received and disbursed; the sources from which the same were received, and the purposes for which the same were paid out. He shall, also, in the first week in January, April, July, and October, in each year, file in the office of the secretaiy of state a repoi-t, in the form of a balance-sheet under oath of the receipts and disbursements for each preceding three months. He shall keep in separate books a record of all the personal propert}^ and the cost of the same, purchased by the commissioners in belialf of the state, and the disposition made of the same, when any shall have been sold, and the price received therefor. He shall perform such other duties pro]Derly pertaining to those of secretary as may be required of him by the board. The assistant secretary shall perform such service pertaining to the duties of his office as the secretaiy or commissioners may require during business hours, [Amendment, approved February 28, 1876; Amendments 1875-6, 32; took effect from passage}''^ 2522. Employees and their duties. Sec. 2522. The commissioners may appoint a chief engineer, whose duty it shall be to superintend the construction of all embankments and sea-walls, the dredging of slips and docks, the building of wharves, piers, quays and land- ings, thoroughfares, and other necessary structures, upon the premises and under the control of said commissioners, by virtue of this article. The}- may also, in their discretion, em2:)loy assistant engineers and draughtsmen, who shall be under the control and subject to the directions of the chief engineer, and pay a reasonable compensation for such services. They may appoint an attorney-at-law, who shall attend to the prosecution and defense of all suits and other matters requiring his professional services, and give counsel and advice when required by the board. They shall apj)oint as chief wharfinger a compe- tent man, who must, before entering u]pon the duties of his office, file, in the office of the board, a bond, with two or more sureties, in a sum sufficient to cover any amount of money that shall come into his hands, conditioned for the faithful performance of his duties as such chief wharfinger, which bond, if satis- factory, shall be approved by the board by writing indorsed thereon. Such chief wharfinger shall, under the direction of the commissioners, furnish to all (a; See remarks at head of Article IX, ante, 2520. 311 2522 POLITICAL CODE. ship-masters, cousignees, and pilots of all sliips and other water craft, a piinted copy of the harbor regulations of the harbor of San Francisco, which shall contain the rates of dockage, wharfage, and tolls, and such other matters as said commissioners shall deem proper to furnish to ship-masters, consignees, and pilots, to give them a correct knowledge of the regulations of said harbor; such pi'inted copies of harbor regulations to be furnished to said chief wharf- inger by said commissioners. The chief wharfinger shall also, subject to the directions of the board, superintend and direct the removal of all incumbrances and obstnactious from the docks, slij^s, Avharves, landings, and thoroughfares, and shall have, subject to the directions of the commissioners, as aforesaid, authority to station, berth, and regulate the position of all classes of water craft navigating said harbor, and to remove, from time to time, and from place to place, such water craft as the wants of commerce and good order may require; provided, however, that said chief wharfinger shall have no control over such portions of the water-front of said city and county as are held by grantees or lessees, or their assigns, under valid leases. Said commissioners may also appoint an assistant chief wharfiuger, who shall perform such duties pertaining to his office as shall be required of him by said commissioners, and by said chief wharfinger. Said assistant chief wharfinger must, before entering ujjon the duties of his office, file, in the office of the board, a bond, with two or more sureties, in a sum sufficient to cover all moneys that may come into his hands, conditioned for the faithful joerformance of his duties as assistant chief wharfinger, which bond shall be approved by the board by writing indorsed thereon. Said commissioners shall also appoint a suflieient number of persons wharfingers, to collect the revenue arising from dockage, wharfage, cranage, rents, and tolls, by authority of this article, and may also appoint a sufficient number of persons toll collectors, to collect the tolls authorized to be collected by vii'tue of this article; each of which wharfingers and toll collectors must, before entering upon the duties of their respective offices, file, in the office of the board, a bond, with two or more sureties, in a sum sufficient to cover any moneys that may come into their hands, conditioned for the faithful perfoiin- ance of their duties as such wharfingers and toll collectors, which bonds shall be approved b}' said commisioners by writing indorsed thereon. Every wharf- inger and toll collector appointed by authority of this article must make and subscribe to an official oath, which oath must be attached to and filed with his bond. The secretary of the board is hereby authorized to atlminister to each wharfinger and toll collector the oaths required by this article to be made by such wharfingers and toll collectors. Each wharfinger and toll collector shall keejD, in suitable books to be furnished by the commissioners, an account of all moneys by him collected, which books shall be ojjeu to the inspection of the public at all reasonable times, and such wharfingers and toll collectors shall i)ay to the commissioners all the moneys collected by them, at least once in each week, and as much oftener as the commissioners shall require. The wharfingers appointed by authority of this article shall have autliorit}^ respectively, and they are hereby authorized, to require the cajitain, consignees, agents, or owners of any water craft, or the OAvners, agents, )nanagers, or conductors of any railroad car, or train of cars, or the consignees of an}- goods, wares, or merchandise, or animals, to be landed, loaded, or unloaded upon the premises described in this article, on or before the landing, loading, or unloading thereof, to furnish to any such wharfingers, when rccpiired to do so, the number of tojis, or number of hundred, or number of feet, or number of cords, or number of animals, any such water craft, or car, or train of cars, contains; and it shall be the duty of every captain, consignee, agent, or owner of any water craft, or the owners, agents, managers, or conducttjrs of every railroad car, or train of cars, the con- 312 PUBLIC WAYS. 2522-2524 sig-nee of any goods, wares, merchandise, or animals, upon any railroad car, or train of cars, which goods, wares, merchandise, or animals are to be landed, loaded, or unloaded within or upon the joremises described in this article, to furnish to such wharfingers a correct account of the number of tons, or the number of hundred, or number of feet of goods, wares, or merchandise, or number of animals, when required to do so by any wharfinger; and every cap- tain, consignee, agent, or owner of any water craft, or any owner, agent, manager, or conductor of anj' railroad car, or train of cars, or any consignee of any goods, wares, merchandise, or animals, upon any railroad car, or train of railroad cars, who shall neglect or refuse to furnish the information required to be given to the wharfingers by this section, or who shall, designedly, give false infonnation, shall be guilty of a misdemeanor, and, upon conviction thereof before anj^ court of competent jurisdiction, shall be fined not less than twenty nor more than one hundred dollars, or by imprisonment in the jail of the city and county of San Francisco not less than ten nor more than fifty days, or by both sixch fine and imprisonment. [Amendment, approved February 28, 1876; Amendments 1875-G, 32; took e (feet from passage}'-^ 2523. Actions for property , moneys, and to remove obstructions. Sec. 2523. The commissioners may institute and prosecute to final judgment actions in the name of the peoj^le of the State of California for the jDossession of any portion of the premises described in this article, situate between the inshore line or line nearest the mainland and the line off-shore, six hundred and fifty feet therefrom, and parallel therewith, or for the annulling of any lease or contract entered into by the commissioners in behalf of the state by virtue of any general or special law, or for the collection of any money due or that may become due the state by authority of this article; and the commis- sioners may also institute and prosecute to final judgment actions for the re- moval of all unlawful obstructions in or upon said premises, or for the removal of all unlawful obstructions in or upon the streets through the centre of which the inshore line or line nearest the mainland, bounding said premises, runs. They may also remove any unlawful obstructions thereon after the owner, pos- sessor, or occupant of such obstructions shall have five days' notice, in writing, to remove the same, either served on such owner, possessor, or occupant, or posted upon said obstruction by the chief wharfinger, assistant wharfinger, or wharfinger. [Amendment, approved February 28, 1876; Amendments 1875-6, 32; took effect from passage.'-"'' 2524, Water front of San Francisco in charge of commissioner§ — Duties of com- missioners. Sec. 2524. The commissioners shall have possession and control of that por- tion of the bay of San Francisco, together with the imj^rovements, rights, j^i'ivi- leges, easements, and appurtenances connected therewith, or in anywise apper- taining thereto, for the purposes in this article provided (excepting such parcels thereof as are held by the lessees, or their assigns, of valid leases, which j^arcels so held it is hereby made the duty of the commissioners to take jpossession of, together with the imi^rovements thereon, as soon as said leases terminate, and also to see that the lessees, or their successors or assigns, do not exercise rights and privileges that are not conferred by said leases), bounded as follows, to wit: Commencing at the point where the easterly line of the Presidio reservation in- tersects the water-line front, as established by the board of state tide land com- missioners; thence easterly along said water-line front to the centre of Webster street; thence southerly along the centre of Webster street to the centre of Lewis street; thence easterly along the centre of Lewis street to the centre of (a) See remarks at head of Article IX, ante, 2520. 813 2524 POLITICAL CODE. Polk street; thence southerly along the centre of Polk street to the centre of Touqiiin street; thence easterly along the centre of Tonquin street to the centre of Larkiu street; thence southerly along the centre of Larkin street to the centre of Jefferson street; thence easterly along the centre of Jefferson street to the centre of Powell street; thence southerly along the centre of Powell street to the centre of Beach street; thence easterly along the centre of Beach street to the centre of Dupout street; thence southerly along the centre of Dupont street to the centre of North Point street; thence easterly along the centre of North Point street to the centre of Kearny street; thence southerly along the centre of Kearny street to the centre of Francisco street; thence east- erly along the centre of Francisco street to the centre of Montgomery street; thence along the centre of Montgomery street to the centre of Chestnut street; thence easterly along the centre of Chestnut street to the centre of Sansome street; thence southerly along the centre of Sansome street to the centre of Lomhartl street; thence easterly along the centre of Lombard street to the centre of Battery street; thence southerly along the centre of Battery street to the centre of Greenwich street; thence easterly along the centre of Greenwich street to the centre of Front street; thence southerly along the centre of Front street to the centre of Vallejo street; thence easterly along the centre of Vallejo street to the centre of Davis street ; thence southerly along the centre of Davis street to the centre of Pacific street; thence easterly along the centre of Pacific street to the centre of East .street; thence southerly along the centre of East street to the centre of Folsom street; thence westerly along the centre of Folsom street to the centre of Steuart street; thence southerly along the centre of Steuart street to the centre of Hai'rison street; thence southerly on a direct line w4th said Steuart street, two hundred and fifty-three feet nine inches, to the centre of a street the name of which is not on a map; thence at right angles, westerly, along the centre of said street to the centre of Spear street; thence southerly along the centre of Spear street to the centre of Bryant street; thence westerly along the centre of Bryant street to the centre of Beale street; thence southerly along the centre of Beale street to the centre of Brannan street; thence westerly along the centre of Brannan street to the centre of First street; thence southerly along the centre of First street to the centre of Townsend street; thence westerly along the centre of Townsend street five hundred and fifty feet, to the centre of a street the name of which is not on a map; thence at right angles southerly along the centre of said street to the centre of King street; thence along the centre of King street to the centre of Second street; thence southerly along the centre of Second street to the centre of Berry street; thence westerly along the centre of Berry street to the centre of Third street; thence southerly along the centre of Third street to the northerly line of Channel street; thence westerly along the last-mentioned line to the easterly line of Fifth street; thence south- erly along said last-mentioned line to the southerly line of said Channel street; thence easterly along said mentioned line to the centre of Keiitucky street; thence southerly along the centre of Kentucky street to the centre of Fourth street; thence along the centre of Fourth street to the centre of Louisiana street; thence southerly aloiig the centre of Louisiana street to the centre of El Dorado street; thence along the centre of El Dorado street to the centre of Illinois street; thence southerly along the centre of Illinois street to the centre of So- lano street; thence easterly along the centre of Solano street to the water-front line established by the board of state tide land commissioners; thence south- erly along said last-mentioned line to the centre of Tulare street; tlience westerly along the centre of Tulare street to the centre of Texas street; thence southerly along the centre of Texas street to the centre of Islais street; thence easterly along the centre of Islais street to the centre of Water-front street; 314 PUBLIC WxYYS. 2524 thence southerly along the centre of Water-front street to the centre of India street; thence westerly, southerly, and easterly, along the centre of said India street to the centre of Water-front street, to the centre of China street; thence westerly along the centre of China street to the centre of Third avenue; thence southerly along the centre of Third avenue to the northerly line of the property of the California dry dock company; thence easterly along said last-mentioned line to the water front estal)lished by the board of state tide land commissioners; thence southerly along and around said dry dock company's land to the south- easterly corner thereof; thence westerly along the line of said land to the centre of W^ater-front street; thence southerly along the centre of Water- front street to the centre of Nineteenth avenue; thence westerly along the centre of Nineteenth avenue to the centre of Dock street; thence southerly along the line of Dock street to the centre of Twenty-third avenue; thence west- erly along the centre of Twenty-third avenue to the centre of H street; thence southerly along the centre of H street to the centre of Twenty-fourth avenue; thence easterly along the centre of Twenty -fourth avenue to the centre of Water- front street, and thence southerly along the centre of said Water-front street to the southern boundary of the county of San Francisco; thence along the southerly, easterly, and northerly boundary lines of said county to a point due north of the j)lace of commencement, and thence south to the place of com- mencement. But no harbor embankment or sea-wall shall be constructed outside of the following named points and lines, to wit: Commencing at the point where the eastern boundary line of the Presidio reservation, ex- tended in a northerly direction, intersects the three fathom contour line, shown upon the charts of the United States survey, and running thence in an easterly and southerly direction upon straight or curved lines, in such manner as to approach as near as practicable the extreme outer pro- jections of the water-line front as described in an act to provide for the dis- position of certain proj^erty of the State of California, .passed March twenty- sixth, A. D. eighteen hundred and fifty-one, to a point at or near the intersection of Second and Berry streets; thence continuing southerly, upon straight or curved lines, in such a manner as to approach as near as practicable the extreme outer jDrojections of the water-line front, as established b}^ the board of state tide land commissioners, to the southern boundary of said city and county of San Francisco. And said commissioners, in addition to a general control over said premises, shall have authority to use, for loading and landing merchan- dise, with a right to collect dockage, wharfage and tolls thereon, such portion of the streets of the city and county of San Francisco ending or fronting upon the waters of said bay as may be used for such purposes without obstructing the same as thoroughfares, and avithority to rent an oflSce in the city and county of San Francisco, between Montgomery, Market, and Pacific streets and the city front; and jDurchase from time to time suitable books for the records of the secretary and accounts of the wharfingers, together with such stationery as may be required by the board, and to fix and regulate from time to time the rates of dockage, wharfage, cranage, tolls, and rents, and collect such an amount of revenue therefrom as will enable the commissioners to perform the duties required of them by authority of this article. And the com- missioners and mayor of San Francisco may so modify and establish such rates of dockage and wharfage as will produce a revenue not to exceed in amount the moneys collected in the year eighteen hundred and seventy-five, collecting as near as possible equal amounts from dockage and wharfage. When such modification has been made, the collection of tolls must be abolished, and the toll collectors discharged. The commissioners shall construct such number of wharves as the wants of commerce shall require, and shall locate such 315 2524 POLITICAL CODE. ^vhai-ves, at such points ami upon such lines, as the board may deem most suitable for the best interest of commerce, and shall repair and maintain all the wharves, piers, quays, landings, and thoroughfares the wants of commerce may- require, and generally to erect all such improvements as may be nefcessaiy for the safe lauding, loading, and unloading, and protection of all classes of mer- chandise, and for the safety and convenience of passengers passing into and out of the city and county of San Francisco by water. But no wharf shall be extended into the bay more than six hundred feet beyond the inside line, or line nearest the shore of the city and county of San Francisco, described in this article, or more than six hundred feet beyond the permanent water-front line when established under the jiroA-isions of this article, nor shall any such wharf be constructed upon such place or line as will cause any slip or dock to be less than one hundred and thirty-six feet wide at the most narrow point between the wharves. "When they determine that a new wharf shall be erected, or any other necessary improvement constructed or repairs made, or dredging machines, scows, steam tugs, and any necessarj^ machinery, the cost of which shall exceed three thousand dollars, they shall advertise for sealed proposals, for a period of not less than ten days, in one or more of the daily newspapers in the city and county of San Francisco. Every proposal shall be accompanied by a certified check for an amount equal to five per cent, of the amount of such proi:)Osal, such check to be made payable to the order of the secretary of said board, conditioned if the proposal is accepted and the contract awarded, and if the bidder shall fail or neglect to execute the contract and give the bond re- quired within six days after the award is made, in that case said sum mentioned in said check shall be i^aidinto the state treasury b}' said secretary as liquidated damages for such failure and neglect as a portion of San Francisco harbor improvement fund. Such advertisement shall contain a general description of the work to be done, the materials to be used, the j^lace where to be used, and must refer to specifications, which must contain a full and accurate description of the work to be joerformed, the material to be used, and where to be used, which sj^ecifications shall be kept in the office of the secretary of the board in such manner that all persons may insj^ect the same during the usual business hours of all days except Sundays and holidays. On a day named in the adver- tisement, the commissioners shall oi)en the bids in the presence of such bidders as are present, and award the contract to the lowest bidder who shall furnish sufficient svu'eties to guarantee the performance of the work. If, in the opinion of the commissioners, the bids are too high, they may reject them and adver- tise anew in Hke manner as before. If, in the opinion of the commissioners, the second bids are too high, they may reject them likewise, and enter into contract with responsible parties without giving further notice. Any contract entered into without giving public notice and receiving bids, must be at least ten per cent, lower than the lowest rejected bid. The board may construct such harbor, endjankment, or sea-wall, as shall be necessary to protect the harbor of San Francisco, and dredge such number of slips and docks as the commerce of the port of San Francisco may require, to a depth that will admit of the easy and free ingress and egress of all classes of water craft that load and discharge cargoes at the wharves, piers, quays, landings, and thoroughfares in the harbor of San Francisco; to jjerform which dredging the board of state harbor commissioners are hereby authorized and empowered to purchase or construct dredging machines, scows, steam tugs, and the necessary machinery, and enii)](n' men for operatiiig the same. "When any portion of the premises desciil^ed in this article shall be dredged, the sand, mud, or other substance shall be dei^osited in a place designated by the board in not less than fifteen fathoms of water. All classes of water craft that uses or makes fast to any 316 PUBLIC WAYS. 2524 ■\vliarf, i:»ier, quay, landing, or thoroughfare, and lands npor or loads therefrom any goods, wares, or merchandise, shall be liable, and must pay to the com- missioners such rates of dockage as shall be fixed by authority of this article; and all such water craft as shall discharge or receive any goods, wares, or merchandise, while moored in any slip, dock, or basin, within the jurisdiction of the commissioners, shall pay one half the regular rates of dockage. Any water craft that shall leave any wharf, pier, quay, landing, thoroughfare, slip, dock, or basin, unless forced to do so by stress of weather, without first paying the dockage due from such vessel, shall be liable to pay double the regular rates. The charge for wharfage and tolls shall be a lien upon all goods, wares, and merchandise landed upon any of the wharves, piers, quays, landings, or thoroughfares, upon the premises described in this article; and the com- missioners, their agents or lessees, may hold possession of any such goods, wares, or merchandise, so landed as aforesaid, to secure the payment of such wharfage and tolls; and for the purpose of such lien, are deemed to have jiossession of such goods, wares, and merchandise, so landed, until such charges for wharfage and tolls are paid. The commissioners shall have power to make reasonable rules and regulations concerning the control and manage- ment of the property of the state, which is intrusted to them by virtue of this article, and said commissioners are hereby authorized and required to make without delay, and from time to time, and publish not less than thirty days, in a daily newspajDcr of general circulation, published in the city and county of San Francisco, all needful rules and regulations, not inconsistent with the laws of the state or of the United States, in relation to the moving and anchor- ing of vessels in said harbor, providing and maintaining free, open and unob- structed passage-ways for steam ferry-boats and other steamers navigating the waters of the bay of San Francisco and the fresh-water tributaries of said bay, so that such steamers can conveniently make their trips without impediment from vessels at anchor or other obstacles. And said commissioners may also make all needful rules and regulations governing the removal of such vessels from the wharves and other landings, and from slips and docks, as are not engaged in receiving or discharging cargo, prescribing the time duriug which goods, wares, and merchandise, landed upon any wharf, pier, quay, landing or thoroughfare, shall be permitted to remain thereon, and may divide the same into several classes, and may, by such rules and regulations, provide that in case any such goods, wares, or merchandise remain upon any wharf, pier, quay, landing, or thoroughfare beyond the term so prescribed, the respective wharf- inger may, under the order of the commissioners, remove and deposit the same in a suitable i^lace, at the charge, risk, and expense of the owner thereof. When any goods, wares, or merchandise shall have remained upon any wharf, pier, quay, landing, or thoroughfare, more than twenty-four hours, the commis- sioners may, in their discretion, charge such additional rates for each subse- quent day as in their opinion is just and equitable. The commissioners may, in their discretion, set apart and assign for the exclusive use of the water craft used by the officers of the federal government such convenient and safe landings as such officers may require, together with suitable premises near such landings as may be set apart and assigned for their use, upon which premises such officers may cause to be erected offices and store-houses to suit their conve- nience, and the commissioners shall charge a reasonable compensation per month for the use of such landings and office and store-house premises; set apart and assign a suitable and proper locality for the use of the harbor police of the city and county of San Francisco; and also a suitable place for a boat- house station for the exclusive use of the quarantine and health officers of said city and county, without compensation; set apart and assign for the exclusive 317 2524 POLITICAL CODE. use of steam ferry-boats suitable slips, in which such structures may be erected as will secm*e the safe and convenient landing of passengers, and safe landing and deliveiT of freight; set apart and assign suitable wharves, berths or land- ings for the exclusive use of sea-going steamers, to construct suitable sheds, gates, and other temporary structures as may be necessaiy for the safe and convenient lauding of passengers, and safe landing and delivery of freight; and set apart and assign for the sole and exclusive use of the fishermen of the city and county of San Francisco such place or places as the said commissioners shall deem proper, sufficient, and adapted for the requirements and necessities of said fishermen; provided, the premises so set apart by said commissioners shall be used onlj- for the legitimate business of said fishermen, and for no other purpose ; and provided, said commissioners shall not charge therefor more than the following rates: for boats over twenty-two feet and under forty feet long, one dollar per week; for boats from sixteen to twenty-two feet long, seventy-five cents per week, and for all boats less than sixteen feet long, twenty- five cents per week. The commissioners may assign suitable places for the landing of horses, cattle, sheep, and swine, and when such places have been assigned it shall be a misdemeanor for a commander of any water cfait to land any greater number than ten at any one time from any water craft at any other place. The commissioners may set apart for the uses and purposes of dry docks and marine railways, such portions of the water front northwesterly of the northerly end of Kearny street, and southerly of the easterly end of Solano street, as the wants of commerce may require, and lease the same for a period not to exceed ten years. "When the commissioners lease premises for marine railways and dry dock purposes, as provided in this section, they shall advertise for sealed proposals, for a period of not less than ten nor more than twenty days, in one of the daily newspapers of the largest circulation, printed in the city and county of San Francisco, which advertisement shall contain a descrip- tion of the premises to be leased. On the day named in the advertisement, the commissioners shall open the bids in the presence of such of the bidders as are present, and award the premises to be leased to the highest responsible bidder that shall furnish sufficient sureties to guarantee the payment of the rent, and may negotiate for and accept and cancel any lease of any portion of the prem- ises described in this article, and pay a reasonable compensation for any structures upon any such leased premises as in the opinion of the board and engineer may be useful for such commercial purposes as this article is intended to promote. No person or companj'^ shall, without the consent of the board of state harbor commissioners, land or remove any goods, wares, or merchandise, or other thing, upon or from any wharf, pier, quay, landing, or thoroughfare, situate upoii the premises described in this article, unless authorized to do so by virtue of valid lease ; nor shall any person collect dockage, wharfage, cranage, rent, or toll, within the boundaries of the premises described in this article, ex- cept by virtue of valid leases, without first obtaining permission to do so from said commissioners ; nor shall an}' person or company' place or cause to be placed any obsti'uctious in that portion of the bay of San Francisco, described in this article, nor upon any Avharf, pier, quay, landing, or thoroughfare, without the consent of the board. "Whenever any wharf, pier, quay, landing, or thorough- fare, in the harbor of San Francisco, shall be incumbered, or their free use interfered with, by goods, Avares, merchandise, or other substance, whether loose or built upon, or fixed to any such wharf, pier, quay, lauding, or thorough- fare, it shall be the duty of the commissioners to notify, in writing (which notice may be sei'ved by a wharfinger or by the secretar}- or assistant seci*etary of the board), the owner, agent, occupant, or person, placing or keeping such obstructions thereon, to remove the same within twenty-four hours after the 318 PUBLIC WAYS. 2524-2526 serving of such notice, and in case of failure to comply with such notice, and remove such obstructions, the owuer, agent, occupant, or person, so notified, shall be liable to pay the commissionei's the sum of twenty -five dollars for each and every day during which such obstruction shall remain upon any such wharf, pier, quay, landing, or thoroughfare; and the commissioners shall have power, in their discretion, to remove any such incumbering substance, and store the same in any suitable, convenient, and safe place, and a sum equal to the amount of the expenses of the removal, together with all other necessary charges, shall be paid by the owner of such incumbering substance to the com- missioners, and such sum and necessary charges shall be a lien on such sub- stance until paid. The rates of dockage, wharfage, and tolls, shall not exceed those established by the board of state harbor commissioners July first, eighteen hundred and seventy-four, and dockage shall not be collected on au}^ vessel lying at anchor outside of dock, wharf, or slip. [Ainendment, approved February 28, 1876; Amendments 1^1 b-Q, 32; took effect from pamage!-''^ 2525. Extension of streets along the icater front. Sec. 2525. The board of state harbor commissioners are authorized to extend any of the streets lying along the water front of said city and county, to a width not exceeding one hundred and fifty feet, where they have not been already so extended. The outer half of such streets must be constructed or built and maintained in good repair by the state harbor commissioners, or parties holding under them, and may be used as a landing-place or pier, on which dockage, wharfage, and tolls may be collected; and until such extensions are made, the commissioners may have and use as a landing-place, with full power to collect dockage, wharfage, and tolls thereon, so much of the streets now fronting upon the water front as may be used for such purpose without obstructing the same as a thoroughfare. The inner half of such streets shall be constructed and maintained in good repair by the owners of the lots abut- ting thereon and the city and county of San Francisco. The commissioners are authorized to construct across the outer half of said streets an extension of the sewers of the said city and county; if it be necessary to take any land for the purpose of widening any such street, the commissioners are hereby author- ized to institute and prosecute to final determination proceedings therefor in conformity with the provisions of Part III, Title VII of the Code of Civil Procedure, and to pay such compensation as may be assessed for such land taken. "When it becomes necessary for the commissioners to construct any wharves on the line of the water front they are authorized to adopt and pay for any structures which would form j^art of such wharves and which have been constructed along such line by private parties prior to the passage of this act. [Amendment, apjproved April 3, 1876; Amendments 1875-6,51; took effect from passage}'^'' 2526. Limit of money to he collected. Sec. 2526. No greater amount of money shall, in the main, ever be collected by the collection of dockage, wharfage, tolls, rents, and cranage, than shall be necessary to construct and keep in repair such number of wharves, piers, landings, and thoroughfares, construct sheds, dredge such number of slips and docks, construct a sea-wall and harbor embankment, and pay incidental expenses allowed to be paid by this article. [Amendment, approved February 28, 1876; Amendments 1875-6, 32; took effect from passage. ^'^ (a) See remarks at head of Article IX, ante, 2520. -widening of East street The amendment in the text (b) This section was previously amended by act of enlarged the provisions for widening so as to embrace February 2.S, 1876; Amendments 1875-G, 32, at the same any of the streets on the water front. time with the other sections of the entire article. The See also remarks ut head of Article IX, ante, 2520. amendment of February 28, provided only for the (c) See remarks at head of Article IX, ante, 2o20. 319 2527-2531 POLITICAL CODE. 2527. Contracts. Sec. 2527. No contract or oliligation entered into by the harbor commis- sioners, which creates a liability or authorizes the payment of money, shall be valid or of binding force, unless signed by all three of the commissioners, and countersigned by the secretary of the board; and no obligation or contract of any kind, incumng the expenditure of money, shall be entered into by the commissioners, unless there is money in the state treasury to the credit of the San Francisco harbor improvement fund sutEcient to pay the same. [Amend- ment, approved February 1^, 187G; Amendments 1875-6, 32; took effect from pas- sage }^^ 2528. Dit^position of moneys collected. Sec. 2528. All moneys collected by virtue of this article shall be paid by the commissioners into the state treasurj^ to the credit of the San Francisco harbor improvement fund, at least as often as once in each month, in like currency as received, excepting so much thereof as may be necessary to -paj the salaries of the commissioners, secretary-, assistant secretary, engineers, attorney-at-law, wharfingers, toll-collectors, office rent, cost of office furniture, books, stationery', lights, fuel, legal and other incidental expenses, and three thousand dollars per month for urgent repairs; which last-mentioned sum the commissioners are hereby authorized to expend monthly in making rejmirs of wharves, piers, landings, thoroughfares, and other stmctures required by urgent necessity, without advertising for sealed proposals therefor. And said commissioners are authorized to remit such moneys to the state treasiirer by exj^ress. [Amend- inott, approved February 28, 187G; Amendments 1875-6, 32; took effect from passage.^''^ 2529. Vouchers, drafts, and xcarrants. Sec. 2529. The commissioners shall take vouchers for all sums of money by them expended under the authority of this article, excepting fifty dollars per month for postage-stamps, express, and other incidental expenses, and safely keep the same on file in the office of the board. For all sums of money paid by the commissioners, excepting those mentioned in section 2528, drafts shall be drawn by them on the controller of state, countersigned by the secretary of the board, and the controller of state shall draw his warrant on the state treas- urer, Avho shall pay the same out of any money in said treasury credited to the San Francisco harbor improvement fund. No warrant shall be drawn b}' the controller upon the treasurer of the state, as provided in this section, unless the order bears the signatures of all three commissioners, and of the secretary of tlie board. [Amendment, app)roved February 28, 1876; Amendments 1875-6, 3 2 ; loijk rjj eat from passage. ' "' 2530. lirports and receipts. Sec. 2530. On the payment into the state treasury of any sum of money, as provided in this article, the state treasvxrer and state harbor commissioners shall report to the state controller the amount so paid; and the state treasurer shall give to the commissioners a receipt for all sums so paid. The commis- sioners sliall I'cpoit to said state controller the amount of money paid into said treasury by them during each month, and shall also report to said controller the amount received and disbursed by the board every three months, and durijig the period for which such report is made. [Amendment, approved Feb- ruary 28, 1876; Amendments 1875-6, 32; took effect from passage.'-''^ 2531. Ex officio mend)ers of board. Sec. 2531. The governor of the state and the mayor of the city and county of San Francisco are hereby made ex officio additional members of the board (a) See remarks at head of Article IX, ante, 2520. 320 PUBLIC WAYS. 2531-2535 of state harbor commissioners, for the special purposes herein mentioned, and shall take j)art in the action of the board as hereinafter provided. \Amend- vient, approved February 28, 187G; Amendments 1875-G, 32; took effect from 2532. Neio sea xoall for San Francisco harbor. Sec. 2532. The board of state harbor commissioners are hereby authoi-ized and empowered and directed within six months from and after the passage of this act to employ two consulting civil engineers, to act in concert with the engineers of the board, to make a survey, select and locate a new line for a harbor embankment or sea-wall, and make a report of their doings to said commissioners, who shall, after receiving the same, appoint a time for holding at the office of the board a special meeting of the board, to consider the ques- tion of the adoption or rejection of the same. The board shall, at least ten days previous to said meeting, notify the governor of the state and the mayor of the city and county of San Francisco of the time, place, and object of said meeting of said board, and shall request them to be present and take part in the consideration of the question; and at said meeting, or any adjourned meet- ing thereof, the governor and mayor shall be deemed additional members of said board, with like powers and rights as the other members thereof. If they ai'e not present at the meeting, the board shall adjourn to a daj' certain, and notify them anew as before; and if either be present at the adjourned meeting, with three commissioners, action may be had, and an affirmative vote of all four present shall determine the question; any less vote shall be a negative vote. But the board may order new surveys and locations, which may be adopted or rejected in like manner as before. If the vote is in the affirmative, the line adopted shall be thenceforth the line of the harbor embanlanent and sea-wall of the port of San Francisco. [Amendment, approved February 28, 1876; Amendments 1875-6, 32; took effect from passage}"^ 2533. San Francisco harbor improvement fund. Sec. 2533. On and after the passage of this act the treasurer of the state shall keep the money remitted to him by the board of state harbor commis- sioners, to the credit of a fund to be known as the San Francisco harbor im- provement fund; all moneys in the state treasury to the credit of the state wharf and dock fund shall be transferred by the state treasurer to the San Francisco harbor improvement fund, and the state wharf and dock fvind account shall be closed, and the state treasurer shall notify the board of such transfer, after which all drafts drawn by the board shall be paid by the treasurer out of the San Francisco harbor improvement fund. [Amendment, approved February 28, 1876; Amendments 1875-6, 32; took effect from passage.'^^^ 2534. Limit of compensation for collecting dockage, etc. Sec. 2534. No greater sum than two hundred dollars per month shall be paid, on an average, for the collecting of dockage, wharfage and tolls on any wharf and the bulkhead adjacent thereto, and for the cleaning of the same, excepting at the bulkheads between Market and Mission, and Howard street wharves, at which bulkheads one hundred dollars per month may be j^aid until wharves have been constructed between said wharves. [Amendment, app>roved February 28, 1876; Amendments 1875-6, 32; took effect from passage.^"^ 2535. Duties of state treasurer — Accounts and books. Sec. 2535. The state treasurer shall receive all moneys paid by the state harbor commissioners, and keep the same in a separate fund, to be known as the San Francisco harbor improvement fund, and pay out the same as provided for in this article, and shall keep an accurate account of all moneys received by him and j)aid (a) See remarks at head of Article IX, ante, 2520. 21 321 2535-2536 POLITICAL CODE. out under the authority of this article, in books kept solelr for that purpose; which said books shall be open at all times to the inspection of the governor and con- troller of state, and of any committee appointed by the legislature, or by either branch thereof . [Ameridment, approved February 28, 1876; Amendments 1875-6, 32; tojk effect from passage}^'' 2536. Proposals and contracts for construction of neiu sea-wall. Sec. 2536. "When the commissioners shall determine to commence the con- struction of a continuation of the harbor embankment or sea-wall, they must advertise for sealed proposals, for a period of not less than sixty days, in not less than two of the daily newspapers published in the city and county of San Francisco. The advertisement must contain a full and accurate description of the work to be performed, the material to be used, and the place where to be used. On a day named in the advertisement, the commissioners must open the bids in the presence of such bidders as are present, and award the contract to the lowest bidder, who shall furnish a bond, with two or more responsible sure- ties, to be approved by the commissioners, which approval shall be by writing, indorsed upon said bond, conditioned for the due performance of the contract. If, in the opinion of the commissioners, the bids are too high, they shall reject them and advertise anew in like manner as before. And if, in the opinion of the commissioners, the second bids are also too high, they shall reject them, likewise, and may enter into a contract with responsible parties without giving further notice. The parties entering into a private contract with the commis- sioners must give a bond, with two or more responsible persons as sureties, to be approved by the commissioners, which approval shall be by writing, indorsed upon said bond, conditioned for the faithful performance of the contract. But the consideration agreed to be i)aid in any contract entered into without giving public notice must be five per cent, lower than the lowest responsible bid re- jected. The work to be performed under any one contract shall not exceed one thousand lineal feet of harbor embankment or sea-wall. But the commissioners may enter into as many contracts at the same time as they may deem the public good shall require, provided the sum total of the sums agreed to be paid shall not exceed the amount of money to the credit of the San Francisco harbor improvement fund in said treasury, not required to pay for the erection of the necessary wharves and the repairing of whaiwes and other wooden structures upon the city front, the dredging of slips and docks, and incidental expenses. Separate contracts may be entered into for the dredging of a channel for the reception of the rock required for the constiniction of a harbor embankment; provided, that the advertising for sealed proposals, the receiring and opening of bids, and the awarding of contracts required in this section, shall be com- plied with in the letting of such work in separate contracts. The commissioners may, if in their opiuion it will be more economical, dredge with the dredge be- longing to the state, the channel necessary for the reception of the stone used in the construction of the harbor embankment or sea-wall, provided they adver- tise for the stone work of the embankment or sea-wall as above set forth. No contractor who enters into a contract to construct any portion of said harbor embankment or sea-wall, shall be required to commence the work in less than thirty days after the awarding of the contract. The board shall, at least ten days previous to the holding of any meeting as provided in this section, notify the governor of the state and mayor of the city and county of San Francisco, of the time, place, and object of the meeting, and request them to be pres- ent and take part therein; and at said meetings the governor of the state and said mayor shall be deemed additional members of said board, with like (a) S«e remarks at head of Article IX, ante, 2520. 322 PUBLIC WAYS. 2536-2539 powers and rights as the other members thereof; and no contract shall be entered into under the authority of this article, without the consent of either the said governor or said mayor. Neither of the commissioners, nor their appointees, shall be interested in anj- contract for the erection or repairing of any work upon the premises described in this article. Any commissioner or ajopointee who shall be so interested is guilty of a felony. Every proposal shall be accompanied by a certified check for an amount equal to five per cent, of the amount of such proposal, such check to be made payable to the order of the secretary of said board, conditioned if the proposal [is] accepted and the con- tract awarded, and if the bidder shall fail or neglect to execute the contract and give the bond required '^\ithin six days after the award is made, in that case said sum mentioned in said check shall be paid into the state treasury by said secre- tary, liquidated damages for such failure and neglect as a portion of San Fran- cisco harbor improvement fund. [Amendment, approved February 28, 1876; Amendments 1875-6, 32; took effect f rom j^assage.'-'" 2537. Report of commissioners. Sec. 2537. The commissioners shall, on or before the first day of November, A. D. eighteen hundred and seventy-seven, and every two years thereafter, make to the governor a full report of all moneys by them received and disbursed, stating, specifically, for what the same was received and for what purpose ex- pended, and shall give a concise account of all improvements made, and the general condition of the jJi'operty under their charge. [Amendment, approved February 28, 1876; Amendmeids 1875-6, 32; took effect from ])assage}'^^ 2538. 3Iaps of changes in lines of water front or streets. Sec. 2538. In case the lines of the water front of the city and county of San Francisco, or the lines of any of the streets of said city and county ending at said water line, shall be changed by authority of this article, the commission- ers shall cause to be made two accurate maps of sruwey, showing such change, which maps shall be dated, certified, and signed by the engineer of the board and commissioners, and one filed in the office of the recorder of said city and county, and the other in the ofiSce of the board. After being so filed, they shall be considered and treated as official maps by all the coiu'ts of record in the state. [Amendment, approved February 28, 1876 ; Amendments 1875-6, 32; took effect from passage.'-''^ 2539. Office and duties of chief ivharfnger. Sec. 2539. The chief wharfinger shall keep an office in some convenient place upon the city front, between Market and Pacific streets, which shall be kept open every day (Sundays and holidays excepted), from seven a. m. till six p. m. The commissioners shall furnish a suitable building for an office, for the exclu- sive use of said chief wharfinger and assistant chief Avharfinger, with suitable office furniture. It shall be the duty of the chief wharfinger to execute and enforce the rules and regulations which may be established by said board of state harbor commissioners pursuant to the provisions of tliis article. And it shall be the duty of all pilots, masters of tug-boats, masters, owners, and con- signees of vessels, to obey all lawful orders and directions of the chief wharf- inger in relation to the stationing, anchoring, and remoA'ing of vessels under and pursuant to such rules and regulations. The chief wharfinger is empow- ered to determine cases of collision by consent of all j^arties interested, and where damages do not exceed three hundred dollars the decision is final. [Amendment, approved February 2S, 1876; Amendments 1875-6,32; took effect from passage.'-"'' (a) See remaris at head of Article IX, ante, 2520. 323 2o40-2543 POLITICAL CODE. 2540. Duties of chief wharfinger as to abandoned xoater craft and boats adrift. Sec. 2540. In addition to the duties required to be i^erformed by the chief wharfinger by any section in this article preceding this section, he shall take in charge all abandoned water craft and all boats jncked ujd adrift, and secure the same, after which he shall advertise, for one week, in one of the daily newspa- pers printed in the city and county of San Francisco, giving the full particu- lars i)ertaining to the same, and request all i^arties interested to appear and es- tablish their title or claim thereto, within twenty days from the last publica- tion. If claimed within said period, such property shall be delivered to the owner on payment of all costs of removing, securing, and advertising the same. If not claimed within said period, or if the owner fails to pay the charges, such jiroperty shall be sold by the chief w^hai-finger, to the highest bidder, at public auction, and the proceeds, less the costs, shall be joaid the ow^ner, if claimed by him, or, if not claimed by the owner, shall be paid to the board of state har- bor commissioners ; but the owner shall be entitled to receive from said board the amount so j)aid, if he shall claim the same within one year from the date of said payment. For the purposes of .this section the harbor of San Francisco shall be the tide-waters of the city and county of San Francisco, and the ju- risdiction of the chief wharfinger shall, when performing the duties required by this section, be coextensive with such tide-waters. [Amendment, ajypruved Feb- ruary 28, 1876 ; Amendments 1875-6, 32; took effect from passage}^^ 2541. Refusal to obey lawful orders of chief loharfinger. Sec. 2541. If any master, agent, or owner of any water craft, shall refuse or neg- lect to obey the lawful orders or directions of the chief wharfinger in any mat- ter pertaining to the regulations of said harbor, or the removal or stationing of any water craft, such master, agent, or owner, so refusing or neglecting, is guilty of a misdemeanor, and upon conviction thereof before any court of com- petent jurisdiction shall be punished by a fine not to exceed three hundred dol- lars, or by imprisonment not to exceed one hundred days in the jail of the cdty and county of San Francisco. [Amendment, approved February 28, 1876 ; Amendments 1875-6, 32; took effect from jxissage.^"'' 2542. Obstructions to navigation. Sec. 2542. All persons are forbidden to deposit, or cause to be deposited, in the waters of the harbor of San Francisco, as described in the preceding sec- tions, any substance that will sink and form an obstruction to navigation, with- out first obtaining permission in w^riting of the board of state harbor commis- sioners, which permission shall describe, with an ordinary degree of certainty, the place were such de^DOsit may be made, and the secretary of the board shall record such pennission. Any person violating the jirohibition contained in this section is guilty of a misdemeanor, and upon conviction thereof before a court of competent jurisdiction, shall be fined not less than one hundred or more than five hundred dollars, or impiisoned in the jail of the city and county of San Francisco not less than thirty nor more than ninety days ; provided, that nothing herein sliall be construed to jorevent or interfere with the constniction of works now in progress in connection with the Oakland harbor. [Amend- ment, approved February 28, 1876; Amendments 1875-6, 32; took effect f-iwi pas- sage.'"' 2543. Speed of horses and rdiicles on vJiarves. Sec. 2543. It shall not be lawful for any person to drive a horse, or mule or any vehicle drawn by ojie or more horses or mules, used in the removal of mer- chandise upon any wharf, pier, quay, landing or thoroughfare, faster than a [a) See remarks at hcail of Article IX, an!e,2o20. 324 PUBLIC WAYS. 2543-2551 walk. Any person violating" the prohibition in this section contained is guilty of a misdemeanor, and upon conviction thereof in any coux-t of competent juris- diction, shall be fined not less than twenty dollars, or imprisoned in the county jail of the city and county of San Francisco not less than ten days. [Ainend- ment, approved February 28, 187G ; Amendments 1875-0,32; took effect from passage.'-^^ 2544. Jurisdiction of police judge's court. Sec. 2544. The police judge's court of the city and county of San Francisco shall have jurisdiction to try all cases of misdemeanor arising under this article. [Amendment, approved Febr'uartj 28, 1876; Amendments 1875-6, 32; took effect from passage.'-"'' 2545. Qualifications of officers. Sec 2545. No person shall be appointed to any office by authority of this article who is not a qualified elector of the state; and no person shall be eligible to any ofiice by virtue of this article who is interested in any class of water craft sailing into and out of the bay of San Francisco, as owner, mortgagee or con- signee. [Amendment, approved February 28, 187G; Amendments 1875-6, 32; took effect from passage.'-'^'' 2546. Official bonds. Sec. 2546. All official bonds required to be given by authority' of this article shall be to the people of the State of California. [Amendment, ajoproved Feb- ruary 28, 1876; Amendments 1875-6, 32; took effect from passu ge.'^"'' 2547. Seal. Sec. 2547. The board of state harbor commissioners shall procure and adopt a seal. [Amendment, approved February 28, 1876; Amendments 1875-6, 32; took effect from passage.'-"^ 2548. When no tolls or wharfage to be collected. Sec 2548. No tolls or wharfage shall be collected from travelers going on board or leaving any steamer or ferry, or upon their carriages or baggage, nor for empty packages returned to the wharf or any vessel, or for domestic sujiplies for j^rivate individuals intended for consumi^tion and not for sale, weighing less than one hundred pounds. [Amendment, ajjproved February 28, 1876; Amend- ments 1875-6, 32; took effect from passage. ^^'> 2549. Collections to be in gold and silver coin. Sec 2549. The revenue collected and disbursed by authority of this article shall be gold and silver coin of the United States. [Amendme^it, approved Feb- ruary 28, 1876; Amendments 1875-6, 32; took effect from passage.'-'-^ 2550. Wharfingers and collectors to be special policemen. Sec 2550. It is hereby made the duty of the board of police commissioners of the city and county of San Francisco to appoint such number of wharfingers and toll collectors special policemen as such commissioners shall request in writing, such police commissioners to appoint, and also shall furnish such special jDolicemen the usual badge of office, which shall be paid for hj the com- missioners; such appointments must be renewed once in each year. The juris- diction of such special policemen shall be coextensive with the premises described in this article, and their terms of office as such wharfingers and toll collectors. [Amendment, approved February 28, 1876; Amendments 1875-6, 32; took effect from ■passage.'-^'' 2551. Amendments not to impair pending actions, etc. Sec 2551, Nothing in this article shall be taken or deemed to affect any action (a) See remarks at head of .\rtiele IX, ante, 2520. 325 / 2551-2554 POLITICAL CODE. or suit now peudiug, or any rij^lit of action accrued, or any contract or obliga- tion existing under the provisions of the statutes hereby amended; but such suits or actions may be prosecuted in the name in Avhich they have been insti- tuted, and such rights of action, contract or obligation shall remain unimpaired, and may be j^roseeuted and enforced in all respects the same as if this amend- ment had not been made. [Ainencbnent, approved February 28, 1876; Amend- ments 1875-G, 82; took effect from jMssage}^'' 2552. Salaries. Sec. 2552. The salary of each commissioner, excej^t the governor and mayor, is two hundred and fifty dollars jjer month; the salary^ of the attorney-at-law and the secretary, is two hundred dollars per month each; the salary of the chief wharfinger is two hundred and fifty dollars j^er month; the salary of the chief engineer is two hundred and fifty dollars per month; the salary of the assistant secretary and assistant chief wharfinger is one hundred and fifty dollars per month each; the salary of the wharfingers is one hundred dollars per mouth each; and the salaiy of the toll collectors is eighty dollars jDcr month each; all of which salaries shall be payable monthly; provided, that no ex officio officer or consulting engineers shall receive any compensation exce2)t traveling and other incidental expenses. [Amendment, approved February 28, 1876; Amendments 1875-6, 32; took effect from passage. '•^^ 2553. Duties of attorney-general. Sec. 2553. The attorney-general of the state must give such legal advice and render such legal services as ma}' from time to time be required of him by the commissioners, in connection with their duties, without further compensation. [Amendment, approved February 28, 1876; Amendments 1875-6, 32; took eff^ect from passage.'-^^ 2554. [Sec 2554'"^ was repealed by act of Februaiy 28, 1876; Amendments 1875-6, 32; took effect from jiassage.] All Act to authorize the board of state harbor commissioners to set apart a portion of the water front of the city and county of San Francisco for certain purposes. Approved March 30, 1872; 1871-2, 728. Portion of water front of San Francisco for use offsliermen. Section 1. The board of state harbor commissioners are hereby authorized and empowered to set apart, for the exclusive use and benefit of the fishermen of tlie city and county of San Francisco, such portion of the water front of said city and county of San Francisco as said board of state harbor commissioners shall deem proper and adapted and sufficient for the requirements and neces- sities of said fishermen; provided, that said portion of the water front of said city and county of San Francisco to be set apart by said board of state harbor connuiH.sioners shall be used only for the legitimate jjui^ioses and business of said fishermen, and no other. Fiatrs of wharfage. Sec 2. The board of state harbor commissioners shall charge and collect for every fishing boat in the bay and harbor of San Francisco taking advantage of the provisions of this act such rent or wharfage as they shall deem just and proper; provided, they shall not charge more than the following rates, to wit: for boats thirty-two (32) fret long or over, one dollar per week; for boats twenty-two feet long and under thirty -two feet, seventy -five cents per week; for smaller boats, fifty cents per week. (a) See remarkB at head of Article IX, ante, 2520. ofBce rooms with a fire-pmof vault for its use at a rent (h) The repealed nection provided that tlio board uot to exceed $loO per month, might procure and leube on behalf of the state suitable 326 PUBLIC WAYS. 2554 Collecting officer. Sec. 3. The board of state harbor commissioners are hereby authorized and empowered to emjDloy some suitable person to collect the revenue provided in the foregoing section of this act, and pay a proper compensation therefor, not exceeding one hundred dollars per month; and the person so employed shall be required to iile a satisfactoiy bond with the commissioners sufficient to cover any amount of revenue which may at any time remain in the hands of such collector. They shall further require the person so appointed as aforesaid to keej) a correct account of all moneys by him collected. Use of moneys collected. Sec. 4. All monej-s collected under this act, after deducting the salary pro- vided to be paid to the collector mentioned in the preceding section of this act, shall be paid in to the board of state harbor commissioners, and disposed of in like manner as other moneys collected by the said board of state harbor com- missioners. Fishing boats mooring elsewhere. Sec. 5. The owner or owners of any fishing boat which shall be moored to any portion of the w^ater front of the city and county of San Francisco, except such as shall have been set apart for that purpose by the board of state harbor commissioners under the provisions of this act, shall be deemed guilty of a misdemeanor and fined in a sum not less than five dollars nor more than fifty dollars. Sec. 6. This act shall take effect immediately. An Act authorizing and directing the board of state harbor commissioners to reduce or abolish the rate of dockage, wharfage and tolls. Approved March 30, 1872; 1871-2, 797. Reduction of rates of dockage, wharfage and tolls. Section 1. The board of state harbor commissioners are hereby authorized and directed to reduce the rates of dockage, wharfage and tolls, or to abolish the same, or any of them, and shall, on or before the first day of March a. d. eighteen hundred and seventy-two, reduce the same, so that the rates thereafter to be charged and collected shall not exceed fifty per cent, of the rates charged at the date of the passage of this act. Reduction on leases. Sec. 2. Whenever the board reduces the rates of dockage, wharfage or tolls below the present rates, they may make a proportionate reduction on th*e monthly payments on all leases of the water front leased by said board. Sec. 3. This act shall take efi'ect from and after its passage. An Act to authorize the board of state harbor commissioners to make repairs upon private wharves in their possession. Approved March 26, 1874; 187^-4, 663. Maintenance of wharves. Section 1, The board of state harbor commissioners are hereby. authorized and empowered, in their discretion, to repair and maintain any wharf or whai-ves in their possession or under their control, notwithstanding such wharf or whai-ves may belong to private parties, and to pay the expenses thereof in the same manner as is now provided for the repairs or maintenance of the w^harves of the state; provided, however, that such authority to repair and maintain pri- vate wharves shall terminate with the termination of the possession or control of the same on the jjart of said board. Sec. 2. This act shall take efi'ect immediately after its passage. 327 2554 POLITICAL CODE. All Act to authorize the board of state harbor commissiouers to adjust and pay cert^tiu claims. Approved March 20, 1874; 1873^, GG4. [This act proviJccT for the payment of so much or all of certain claims that mii^ht be found ecjuitably due, not exceeding ^25,000 in all.] An Act coucerniug the state harbor commissioners, and for other purposes. Approved March 30, 1874; 1873-t. 910. Harbor of San Francisco. Section 1. The harbor of San Francisco is hereby placed under the control of the board of state harbor commissioners, and they are authorized to regulate the position of ships, their moorings and anchorage, and generally to make niles and regulations concerning them, with power to enforce the same as fully as that formerly used and exercised by the harbormaster of the city and county of San Francisco. Routes of ferry boats. Sec 2. The commissioners shall keep the routes of the ferry boats, passing in and out of said harbor, free and open at all times, so that ferry boats can conveniently make their trips without impediment on the part of vessels at anchor, or other obstacles. Harboi'master. Sec. 3. The present harbormaster of the city and county of San Francisco shall continue in office as sucli until the end of the terjn for which he was elected, ' and draw the salary allow'ed him by law. He shall, during such term, perform such sen-ices in and about the management and regulation of said harbor, as the commissioners may require of him. At the end of said term said office shall become extinct, and all laws requiring the election of such an officer shall be deemed to be repealed and abolished, alid thereafter all harbor regulations and management shall be performed by the commissioners as hereinafter pro- vided. Duties, how performed. Sec. 4. At the end of the term of office of the j^resent harbormaster of San Francisco, either by lapse of time, resignation, or otherwise, the state harbor commissioners shall rec|uire said duties to be jDerformed by the chief wharfinger, or other executive officer of said board, as they may deem most advantageous to the public interests, but no special office shall be created for that purpose elone. Sec. 5. This act shall take e£fect and be in force from and after its passage. An Act granting further i>owers to the board of state harbor commissioutrs. Approved March 30, 1874; 1873-4, 912. Dredgiiuj. Section 1. The board of state harbor commissioners arc hereby authorized and empowered to do the dredging necessary to be done under the operations of said department, and for tliat purpose, to build or purchase such dredgers, barges, and other engines, macliinery, and ai)pliances as may be necessary to do and perfoim said work, and to emplo}' all necessary men and means there- for, and to pay for the same out of the funds in the state treasury to the credit of said board, or any moneys arising from the revenues of the wharves and docks under their charge. Sec 2. This act shall take effect and be in force from and after its passage. 328 PUBLIC WAYS. 2554-25G9 An Act to transfer certain funds in the state treasury belonging to the state harbor com- mission. Approved April 3, 187G; 1875-6, 761. Treasurer to tranffer funds. Section 1. The state treasurer is hereby directed to close the accouut in his office known as the " San Francisco harbor protection fund," and to transfer the money to its credit to the account of " San Francisco harbor improvement fund." Sec. 2. This act shall take effect from and after its passage. An Act to authorize the compromise of certain litigation concerning a portion of the water front of the city and county of San Francisco. Approved April 3, 1876; 1875-G, 905 [This act authorizes the governor, mayor of San Francisco and board of state harbor commissioners to compromise and settle with claimants for the premises l3'iBg between Jackson and Pacific streets, and outside of the water-front line as estalilished by the beach and water lot act of March 26, 1851. The com- promise contemplated was to accept deeds of the entire property to the state, and pay therefor such amount as might be determined on out of the San Fran- cisco harbor improvement fund.] AKTICLE X. HARBOE COMMISSIONERS FOR THE PORT OF EUREKA. 2567. Harbor commissioners for the port of Eureka. Sec. 2567. There is a board of three commissioners, known as the " Board of harbor commissioners of the port of Eureka. ' ' The chairman of the board of sui^ervisors of Humboldt county, and the president of the board of trustees of the town of Eureka, in the county of Humboldt, are ex officio members thereof, and the third member is appointed by the governor of the state, and holds his office for the term of two years from the date of his appointment and until his \successor is appointed and qualified. i568. Survey and jurisdiction of the hoard. Sec. 2568. The board must, if the same has not been done, cause to be sur- Byed the water front of the town of Eureka, on Humboldt baj', and the land n'oining the town, one half of a mile to the west and one half of a mile to the ^t of the corporate limits thereof, and the waters of the bay for a distance of mile northerly from the water front line, and make or cause to be made a 1\ of such survey, and file a copy thereof in the county recorder's office of the ^\ij; within and for these limits the board of harbor commissioners may ™^^ such rules and regulations as may be necessary and proper for the protec- ''^^^f navigation therein. -^^^ Their duties, rules and regulations. ^2569. The board may: 1-^gulate the erection and extension of wharves and piers and prescribe the plan^j dimensions thereof; 2- -julate the tolls, wharfage, or dockage to be charged thereon; ^- 'ulate the manner of constructing booms, and to limit their extent into the w^ of ti^e ^^^y; ■^^ -^nibe and regulate the manner in which rafts, boats, or vessels must lie at a^j^. ^j. j^^ moored to any wharf or pier; ^- -^^it and remove obstructions to the regular ebb and flow of the tides, and the ipsit and escape into the waters of the bay of substances likely to injure, \^ ^-^j^^ o^, i^^pede the navigation, or to create shoals or shallows in or less^g depth of the waters thereof; 329 2369-2619 POLITICAL CODE. 6. Impose penalties for violation of such rules and regulations, not exceeding, for any one violation, the sum of five hundred dollars, to be recovered by action in the name of the board before any court of competent jurisdiction, together with costs of suit, the net proceeds of which actions must be paid to the treasurer of the town of Eureka for town i:»urposes. 2570. Board to impose penaltlt^. Sec. 2570. The tpwu marshal of Eureka is the harbormaster of the port of Eureka. He must enforce and carry into effect such rules and regulations as the board of harbor commissioners may from time to time adopt and publish, and must report to the board any and all violations thereof, 2571. Cumpensation and exjjenses. Sec. 2571. The members of the board must receive the sum of four dollars for every day actually" and necessarily employed by them in performing the duties herein prescribed, to be paid from the treasury of the town of Eureka. All expenses necessarily incurred by the board in the performance of their duties, must be j)aid in the same manner and from the same fund as the mem- bers of the board are herein provided to be paid. 2572. Fees of liarhormasier . Sec. 2572. The fees of the harbormaster are prescribed by the board of com- missioners, and paid monthly by the board of trustees of the town of Eureka, upon the certificate of the board of commissioners, except such fees as may be provided to be othei-^-ise paid by the board. ARTICLE XL OF SAILORS AND SAILOR BOARDING-HOUSES. [This entire article from sections 2583 to 2G07, inclusive, relating to thf " marine board of the j)ort of San Francisco" for licensing sailors' boarding houses and shii)i)ing masters, was repealed by act apjoroved December 22, 187f Amendments 1875-6, 52; took effect from passage. On account of the abolis" ment of the board, it is deemed useless to give the repealed sections, and th are accordingly omitted.] CHAPTER II. HIGHWAYS. Abticle I. Enumeration of Highways '^^^ II. RcLKs AND Hkstbictions kespkcting theik Usk 2Q'6l III. POWKRS AND DUI-IKS OF HiGHWAY Ol'FICKRS ^^^^ IV. Highway Taiks 2(;57 V. Pkkformance of Highway Labor and Commutation ^^^^ VI. Laying Out, Ai^tkring, and Dis(;ontinuino Roads • -''^S YII. Erkction and Maintknanck of Bridges • 2724 VIII. Obstruction and Injury to Highways • • 2743 ARTICLE I. ENUMERATION OF UIGHWAYS. 2618. TI7i/// are Jn'fjJncays. Sec. 2618. Highways are roads, streets, or alleys, and bridf ^^^^ out or erected by the public, or if laid out or erected by others, "^^*®^ or abandoned to the public. 2619. Origin of higJiways. Sec. 2619. Roads laid out and recorded as highways, by ord^ *^® board of supervisors, and all roads used as such for a period of five '■'^' ^^'® liigh- 330 PUBLIC WATS. 2619-2632 ways. Whenever any corporation owning a toll bridge or a turnpike, plank, or common wagon road is dissolved, or discontinues the road or biidge, or has expired by limitation, the bridge or road becomes a highway. [The foregoing section, and many subsequent ones, in relation to roads and highways, so far as they applied to the counties of Calaveras, Santa Barbara, San Luis Obispo, Ventura, Fresno, Kern, Tehama, Contra Costa, Marin, Lake, Sierra, Plumas, Sacramento, Sutter, Mendocino, Marijwsa, Alameda and Lassen, and also so far as they applied to the counties of Solano, Los Angeles, San Joacpiin and Yuba, were amended by act approved March 30, 1874 (Amend- ments 1873-4, IIG), which took efiect in the counties first named on the sixtieth day after passage, and in the four counties last named on March 6, 1876. As to the counties not named above, the original sections remain the law, as they did also for the four counties last named, until March 6, 1876. As to the counties named the amendments are the law. See also post, 2755. Sec. 2619 was, as aforesaid, amended so as to read as follows:] Sec. 2619. Koads laid out and recorded as highways by order of the board of supervisors, are highways. Whenever any corjioration owning a toll bridge or a turnpike, j)lank, or common wagon road, is dissolved, or has expired by limitation or non-user, the bridge or road becomes a highway. [Amendment, approved March 30, 1874; Amendments 1873-4, 116; took effect as indicated, -^ost, 2755. 2620. Abandonment of highways. Sec 2620. A road not worked or used for the period of five years ceases to be a highway for any purpose whatever. [Amended for certain counties (see ante, 2619, and post, 2755)' as follows:] Sec. 2620. Eoads laid out as provided in section two thousand six hundred and nineteen of this act shall not be vacated or cease to be a highway until so ordered by the board of supervisors. [Amendment, approved March 30, 1874; Amendments 1873-4, 116; took effect as indicated, post, 2755. 2621. Duties of clerk relative to road matters. Sec. 2621. The clerk of the board of suj)ervisors must keep a book in which must be recorded sej^arately all proceedings of the board relative to each road district, including orders laying out, altering, and opening roads ; and in a sep- arate book a description of each road district, its overseers, its roads, highways, contracts, and all other mattei-s jjertaining thereto. AETICLE II. RULES AND RESTRICTIONS RESPECTING THE USE OF HIGHWAYS. 2631. The public easement. Sec 2631. By taking or accepting land for a highway the public acquire only the right of way and the incidents necessary to enjojdng and maintaining it, subject to the regulations in this and the Civil Code pro\dded. All trees within the highway, except only such as are requisite to make or repair' the road or bridges on the same land, are for the use of the owner or occupant of the land. [Amended for certain counties (see ante, 2619, and post, 2755) as follows :] Sec 2631. By taking or accepting land for a highway, the public acquire only the right of way and the incidents necessary to enjoying and maintaining it, subject to the regulations in this and the Civil Code j)rovided. [Amendment, approved March 30, 1874 ; Amendments 1873-4, 116 ; took effect as indicated, post 2755. 2632. Adjoining owner may construct sidewalk. Sec 2632. Any owner or occupant of land may construct a sidewalk on the highway along the line of his land, subject, however, to the authority conferred 331 2G32-2G17 POLITICAL CODE. by law on the board of supei-visors and the overseers of highways ; and any l^erson using such sidewalk with horse or team without permission of the owner is hable to such owner or occupant in the sum of five dollars for each trespass and for all damages suffered thereby. 2633. Jlay plant frees. Sec. 2G33. Any owner or occupant of land adjoining a highway not less than three rods wide may plant trees on the side contiguous to his land. They must be set in regular rows, at a distance of at least six feet from each other and not more than six feet from the boundary of the highway. If the highway is more than six rods wide the row must not be less than six nor more than twelve feet from the boundary of the highway. Whoever injures any of them is liable to the owner or to the occupant for the damage which is thereby sustained. 2634. Gas, ivater, and railroad corporations may lay down conductors and track. Skc. 2G3J:. Every gas, water, or railroad corporation has jDOwer to lay con- ductors and tracks through the public ways and squares in any city, village, or town, when it is established, with the consent of the municipal authorities thereof, and under such reasonable regulations as the authorities and the law prescribe. 2635. Other corporations may acquire right of way. Sec. 2G35. The cases and manner in which railroad, plank road, turnpike, and common wagon road corporations may acquire a right of way upon the l^ublic highways, are jDrovided for in the subsequent chapters of this Code, in Title VII, Part III of The Code of Civil Procedure, and under title "Cor- porations" of The Civil Code. [The part of the Code of Civil Procedure referred to will be found post, 11,287.] AKTICLE III. POWERS AND DUTIES OF BOARDS OF SUPERVISORS AND HIGHWAY OFFICERS OVER HIGHWAYS. 2645. Counties classified for highway purposes. Sec. 2645. For highway jjurposes the counties of this state are divided into two classes: 1. Counties having a pox^lation of ten thousand inhabitants or over are of the first class; 2. Counties having a population of less than ten thousand are counties of the second class. [The foregoing section was repealed as to the counties named ante, 2G19, and post, 2755, by act approved March 30, 1874; Amendments 1873-4, 117; took effect as indicated post, 2755.] 2646. Commissioners of highways. Sec. 2G4G. For all counties of the first class there must be elected at the general election every two years some elector of the county to act as commis- sioner of higlnvays, Avho holds his office for two years, commencing and ending at the time and in like manner as other ministerial county officers. He must give an official bond in the sum of twenty thousand dollars, executed as other official bonds are executed, and take the usual oath of office. The board of supervisors must order the election, fill vacancies, and exercise a supervisory control over the commissioners of highways. [Repealed as to certain counties March 30, 1874; Amendments 1873-4, 117; took effect as indicated post, 2755.] 2647. Duties of commissioners of Jughways and boards of supervisors. Sec 2G47. In the counties of the first class the commissioners of highways, Bubject to rejection or modification and approval of the board of supervisors, 332 PUBLIC WAYS. . 2G47 and in counties of the second class the board of supervisors, by proper ordi- nances, must: 1. Divide the county into a suitable and convenient number of road districts, and appoint therefor annually, or whenever vacancies occur, overseers, with power to remove them at pleasure; 2. Cause to be surveyed, viewed, laid ovit, recorded, opened and worked, such highways as are necessary for public convenience, as in this chapter provided; 3. Cause to be recorded as highways such roads as have become such by usage or abandonment to the public; 4. Abolish or abandon such as are unnecessaiy; 5. Contract, agree for, purchase or otherwise acquire the right of way over private property for the use of public highways; and for that purpose institute, or require the district attorney to institute, proceedings under Title VII, Part III of The Code of Civil Pkocedure, and to pay therefor from the district road fund of the particular district; [See post, 11,237.] 6. Let out by contract, the improvement of highways, and the construction and repair of bridges or other adjuncts to highways, when the amount of work to be done by contract exceeds one hundred dollars; 7. Levy a i^roperty road tax; 8. Order and direct overseers specially in regard to work to be done on par- ticular roads in their districts; 9. Cause to be erected and maintained on the highways they may designate, milestones or posts, and guide-j)osts, properly inscribed; 10. Cause the road tax collected each year to be apportioned to the road dis- tricts entitled thereto, and kept by the treasurer in separate funds; 11. Audit and draw warrants on the funds of the respective road districts when required to pay for right of way or work or improvements thereon. [Amended for certain counties (see ante 2619, and post 2755) as follows:] Sec. 2647. The board of suj)ervisors of each county, by proper ordinance, must : 1. Divide the county into a suitable and convenient number of road districts, and appoint therefor annually, or whenever vacancies occur, overseers, uj)on petition of a majority of property taxpayers of the road district, with power to remove for cause; 2. Cause to be surveyed, viewed, laid out, recorded, opened and worked, such highw^ays as are necessary for public convenience, as in this chapter provided; 8. Abolish or abandon such as are unnecessaiy; 4. Contract, agree for, purchase or otherwise acquire the right of way over private property for the use of public highways, and for that purpose institute, or require the district attorney to institute, proceedings under Title YII, Part III of The Code of Civil Procedure, and to pay therefor from the district road fund of the particular district; 5. Let out by contract the improvement of highways and the construction and repair of bridges, or other adjuncts to highways, when the amount of work to be done by contract exceeds three hundred dollars; 6. Levy a property road tax; 7. Order and direct overseers specially in regard to work to be done on par- ticular roads in their districts; 8. Cause to be erected and maintained on the highways they may designate, milestones or posts, and guide-posts, properly inscribed; 9. Cause the road tax collected each year to be apportioned to the road dis- tricts entitled theretcr, and kept by the treasurer in separate funds; 10. Audit and draw warrants on the funds of the respective road districts, when required to i^ay for right of way, or work or improvements thereon; 833 2647-2G50 POLITICAL CODE. 11. Furnish to eacb roacl overseer a copy of tlais chapter. [Amendmenfs approved March 30, 1874; Amendments 1873-4, 117; took effect as indicated, post 2755. 2648. Road districts, how defined and described. Sec. 2G48. The road districts must be carefull,y and distinctly defined and described, .and designated by the municipal towns or townships; until such division is made the road districts of the vaiious counties must continue as they are at present defined. Eoad districts may be altered, changed, created or modified by the commissioner of highways and the board of supervisors, as occasion requires. "When such acts are done by the commissioner, they are subject to rejection, modification and approval by the board. [Amended for certain counties (see ante 2619, and post 2755) as follows:] Sec. 2G48. The road districts must be carefully and distinctly defined and described, and designated b}' the municipal towns or townshijjs or precinct lines; until such division is made, the road districts of the various counties must continue as they are at present defined. Road dtstricts may be altered, changed, created, or modified by the board of supervisors as occasion requires, and upon petition of a majority of the land owners in any precinct or school district, they shall constitute such precinct or school district a road district. [Amendment, approved March 30, 1874; Amendments 1873-4, 118; took effect as indicated, post, 2755. 2649. Overseers notified to give bond, take oath, etc. Sec 2G49. Overseers of road districts receive notice of their appointment from the commissioner of highways or the clerk of the board of super^'isors, and within ten days thereafter must give the ofiicial bond required by the board of supervisors in the order of appointment or confirmation, and take the usual oath of office. The notice and certificate that the bond has been filed, and the oath taken and indorsed thereon, or a certified coj^y thereof, constitutes a com- mission, and authorizes the person named in and holding the same to discharge the duties of overseer until superseded. [Amended for certain counties (see ante 2619, and post 2755) as follows:] Sec 2649. Overseers of road districts receive notice of their appointment from the clerk of the boax'd of supervisors, and within ten days thereafter must give the official bond required by the board of supervisors in the order of appointment or confirmation, and take the usual oath of office. The notice and certificate that the bond has been filed, and the oath taken and indorsed thereon, or a certified copy thereof, constitutes a commission, and authorizes the person named in and holding the same to discharge the duties of overseer, until superseded. [Amendment, approved March 30, 1874; Amendments 1873-4, 118; took effect as indicated, post, 2755.] 2650. Duties of road overseer. Sec. 2G50. Road overseers, under the direction and supervision and pursuant to orders of tlie commissioner of highways or the board of supervisors appoint- ing tliem, must: 1. Take charge of the public highways within their respective districts; 2. Keep them clear from obstructions and in good repair; 3. Cause banks to be gi'aded, bridges and causeways to be made where neces- sary, keep the same in good repair, and renew them when destroyed; 4. Give two days' notice to the inhabitants of his road district liable to do work on roads, when, where, with what implements, and under whose direction to work, and superintend the same; 5. Collect, from each inhabitant notified to work and who fails to work or prefers to pay it, the commutation fee; 334 PUBLIC WAYS. 2650-2652 6. Make semi-annual reports of all labor performed in his district, and how all road poll tax and commutation moneys were expended, to the commis- sioner of highways or board of supervisors, under oath; 7. Receive and present petitions for new roads, recommend or disapprove the same, and assist in laying them out; 8. Collect all road poll taxes in the mode provided for the collection of other poll taxes, and faithfully account for and pay over the same; 9. Pay over to his successor, or into the fund of his road district in the county treasury, all road moneys in his hands and unexpended; 10. Receive for his services, from money coming into his hands belonging to his road district, the sum of three dollars for each day's service performed by him, to be audited and ordered paid by the board of supervisors. [Amended for certain counties (see ante 2619, and post 2755), as follows:] Sec. 2G50. Road overseers, under the direction and supeiwision, and pur- suant to orders of the board of supervisors appointing them, must: 1. Take charge of the public highways within their respective districts; 2. Keep them clear from obstructions and in good repair; 3. Cause banks to be graded, bridges and causeways to be made where neces- sary, keep the same in good repair, and renew them when destroyed; 4. Give two days' notice to the inhabitants of his road district liable to do work on roads, when, where, with what implements, and under whose direction to work, and superintend the same; 5. Collect from each inhabitant notified to work, and who fails to work or prefers to pay it, the commutation fee; 6. Make semi-annual reports of all labor joerformed in his district, and how all road poll tax and commutation moneys were exjjended, to the board of su- pervisors, under oath; 7. Receive and present petitions for new roads, recommend or disapprove of the same, and assist in laying them out; 8. Collect all road poll taxes in the mode provided for the collection of other poll taxes, and faithfully account for and pay over the same; 9. Pay over to his successor, or into the fund of his road district in the county treasury, all road moneys in his hands and unexpended; 10. Receive for his services, from money coming into his hands belonging to his road district, the sum of three dollars for each day's service performed by him, not to exceed three hundred dollars per annum, to be audited and ordered paid by the board of supervisors; provided, that each road overseer in the county of Sierra shall receive four dollars per day for each day's service per- formed by him. [Amendment, aijproved March 30, 1874; Amendments 1873-4, 119; took effect as indicated, post, 2755. 2651. Commissioner of highways, duties. Sec. 2651. The commissioner of highways must attend each session of the board of supervisors, when road matters of the county are under consideration, and consult with and advise them of all matters pertaining to the roads of the county; and must supervise and correct the list of inhabitants liable to road service in each district in the county; distribute to road overseers their respec- tive lists of assessments; see that they collect and apply the same; receive reports from road overseers and report the same semi-annually to the board of supervisors. [Repealed as to certain counties March 80, 1874; Amendments 1873-4, 120; took effect as indicated post, 2755.] 2652. Compensation of commissioner of highways. Sec 2652. The commissioner of highways must receive a salaiy of one thou- 335 2652-2G57 POLITICAL CODE. sand dollars per annum, to be paid quarterly by order of the board of super- visors from the aggregate road tax collected and paid into the county treasury for road purposes, which must be set apart for such ^^^u-pose prior to the dis- tribution of the same among the road districts. [Repealed as to certain counties March 30, 1874; Amendments 1873-4, 120; took effect as indicated post, 2755. J 2653. General road fund for general road purposes. Sec. 2G53. From the road tax collected from all sources the board of super- visors may -annually set ajDart a sum not exceeding fifteen per cent, of the aggregate for general county road purposes, from which they may direct such amounts to be paid as may be found necessary for such general road purposes in which the inhabitants of all the districts are more or less interested. The object of the aiDproi:)riation must be specified in each order made therefor. [Amended for certain counties (see ante 2G19, and post 2755) as follows:] Sec 2G53. From the proj^erty road tax collected horn, all sources, the board of sujDervisors may annually set apart a sum not exceeding twenty per cent, of the aggregate for general county road purposes, from which they may direct such amounts to be paid as may be found necessary for such general road purposes, in which the inhabitants of all the districts are more or less inter- ested. The object of the appropriation must be specified in each order made therefor. The board shall have no j)ower to create debt on any road district in excess of ten j)er cent, on the estimated amount of the tax receii:)ts from said district for the next ensuing year. [Amendment, aj)proved March 30, 1874; Amendments 1873-4, 120; took effect as indicated, post, 2755. 2654. Bonds of road district for macadamizing. Sec. 2G54. Upon a petition signed by a majority of persons liable to pay a road tax of any kind, and also of those owning a majority of the taxable prop- erty in anj' road district, the board of sujoervisors, for the purpose of macad- amizing the roads of such district (but for no other purpose), may issue bonds of the road district not exceeding in the aggregate five per cent, of the taxable property thereof. The bonds so issued shall bear interest at the rate of eight per cent, per annum, payable annualh', and must be redeemed within five years from date of issuance. The board must also levy a tax annually, not exceeding one and one eighth of one per cent. , for the payment of interest and a part of the principal of such bonds, until the entire amount of bonds issued are re- deemed. The provisions of this section shall apply to any bonds heretofore issued for the purposes therein mentioned. [New section, approved March 30, 1874; Amendments 1873-4, 38; took eject July G, 1874. ARTICLE IV. HIGHWAY TAXES. 2657. WJio owe a road poll tax. Sec. 2657. Every male inhabitant of a road district over twenty-one and under fifty years of age must perform two days' labor annually, to be known as the road poll tax, upon the roads and highways of the district, under the demand and direction of the road overseer thereof; or pay to such overseer a commuta- tion fee of four dollars, or such smaller amount as may be fixed as the commu- tation fee by the board of sujjen'isors. [Amended for certain counties (see ante 2G10, and post 2755) as follows:] Sec. 2G57. Eveiy male inhabitant of a road district, over twenty-one and under fifty years of age, must perform two days' labor, annually, to be known as the road poll tax, upon the roads and highways of the district, under the 33G PUBLIC WAYS. 2G57-2GC0 demand and direction of the road overseer thereof, or pay to siach overseer a commutation fee of four dollars. [Amendment, approved Mar'ch 30, 1874; Amend- meiifs 1873-4, 120; took effect as indicated, post, 2755. 2658. Overseers to make a list of inliahitavts. Sec. 2658. Each road overseer must, within twenty days after lieing notified of his appointment and qualification, deliver to the clerk of the board of super- visors, or to the commissioner of highwaj's, a list of the inhabitants of his dis- trict liable for the road poll tax therein. This list must be laid before the board of suj^ervisors at their first meeting held thereafter. [Amended for certain counties (see ante 2619, and post 2755) as follows:] Sec. 2658. Each road overseer must, within twenty days after being- notified of his appointment and qualification, deliver to the clerk of the board of super- visors a list of the inhabitants of his district liable for the road poll tax therein. This list must be laid before the board of supenasors at their first meeting held thereafter. [Amendment , approved Ilarcli 30, 1874; Amendments 1873-4, 120; took effect as indicated, post, 2755. 2659. Levy of road poll tax, when and how made. Sec. 2659. The board of supervisors must each year, prior to the meeting at which they are required to levy the property tax for county purj)Oses, estimate the probable amount of property tax for highway purposes which may be neces- sary for the ensuing year over and above the road poll tax, and must regulate and fix the amount of property highway tax, and levy the same thereby; and, at the same time, the board of sujDervisors must fix the commutation fee for the road poll tax at an amount not exceeding four dollars. [Amended for certain counties (see ante 2619, and post 2755) as follows:] Sec. 2659. The board of supervisors must, each year, prior to the meeting at which they are required to levy the property tax for county purposes, estimate the probable amount of property tax for highway purjooses which may be neces- sary for the ensuing year over and above the road poll tax, and must regulate and fix the amount of j^i'^P^i'ty highway tax, and levy the same thereby. [Amendment, approved 3Iarch 30, 1874; Amendments 1873-4, 121; took effect as indicated, post, 2755. [There are special laws in various counties as to the collection of the road poll tax, which will be found noted under the heads of the respective counties having them.] 2660. Road poll tax receipts. Sec. 2660. At the time of fixing the commutation fee, the board of super- visors must provide proper blank road poll tax receipts, to be signed by the clerk of the board; and must deliver to each road overseer, or the commissioner of highways for such overseers, a number to each equal to the number of in- habitants of their respective districts liable for road poll tax, take receipts there- for, and charge the road office receiving the same therewith ; but credit must be given to each road overseer for all unsold blank road poll tax receipts re- turned to the clerk of the board of supervisors. [Amended for certain counties (see ante 2619, and post 2755), as follows:] Sec. 2660. The board of supervisors must provide proper blank road poll tax receipts, to be signed by the clerk of the board; and must deliver to each road overseer a number to each equal to the number of inhabitants of their resj)ective districts liable for road poll tax, take receipt therefor, and charge the road office receiving the same therewith; but credit must be given to each road over- seer for all unsold blank road poll tax receipts returned to the clerk of the board of siipervisors. [Amendment, approved March 30, 1874; Amendments 1873-4, 121; took effect as indicated, post, 2755, 22 337 2661-2664 POLITICAL CODE. 2661. Tax list made out — Tax collected and applied. Sec. 2G61. In counties of the first class the commissioner of highways, and of the second class the road overseers, must make out lists of the inhabitants of the road districts liable for road j^oll tax, and require of each the performance of the labor or the payment of the commutation fee fixed by the board of su- pervisors, and apply such labor and commutation money in the opening, main- tenance, and repair of the highways and adjuncts in their respective road dis- tricts. The lists, when j^repared by the commissioner, mnst be j)laced in the hands of the road overseers for the purposes in this section named. [Amended for certain counties (see ante 2619, and post 2755), as follows:] Sec. 2661. Road overseers must make out lists of the inhabitants of the road districts liable for road poll tax, and require of each the performance of the labor or the payment of the commutation, and apply such labor and commuta- tion money in the opening, maintenance, and repair of the highways and ad- juncts in their respective road districts. {Amendment, approved March 30, 1874; Amendments 1873—4, 121; took effect as indicated, post, 2755. 2662. Overseers to add omitted and new inhabitants. Sec. 2662. The commissioner of highways and road overseers must from time to time add to the lists the names of persons liable for road poll tax who were omitted or who have become inhabitants of his district since the original list was made, and enforce the road poll tax or collect the commutation fee therefor, and apply the same as hereinbefore provided. [Amended for certain counties (see ante 2619, and post 2755) as follows:] Sec. 2662. The road overseers must, from time to time, add to the lists the names of persons liable for road poll tax, who were omitted, or who have be- come inhabitants of his district since the original list was made, and enforce the the road poll tax, or collect the commutation fee therefor, and apply the same as hereinbefore provided. [Amendment, ajyproved March 30, 1874; Amendments 1873-4, 122; took effect as indicated, post 2755. 2663. Annnal prope7ii/ road tax, hoiv levied, collected, etc. Sec 2663. The annual property tax for road purposes must be levied by the board of supervisors at their session when the tax is by them levied for county purposes, and must not exceed thirty cents on each one hundred dollars in value of taxable property. This property road tax, when levied, must be annually assessed and collected by the same of&cers and in the same manner as other state and county taxes are levied, assessed, and collected, and turned over to the county treasurer for the use of the road districts from which it is respec- tively collected. 2664. Ciiies and towns not to pay tax. Sec 2664. The road poll and property tax herein provided for must not be levied or collected from the inlial)itants or property of incorporated towns and cities which by municipal authority levy such taxes for the streets and alleys thereof. Bridges crossing the line between cities or towns and road districts, must be constinicted by the cities or towiis and the road fund of the road dis- tricts into which such bridges reach, projiortionally. [Amended for certain counties (see ante 2619, and post 2755) as follows:] Sec 2664. Bridges crossing the line between cities or towns and road dis- tricts, must be constructed by the cities or towns and the road fund of the road districts into which such bridges reach, proportionally; provided, that the board of supervisors may order the whole exjiense of constructing or repairing said bridges out of the general road fund of the county. [Amendment, approved March 30, 1874; Amendments 1873-4, 122; took effect as indicated, post, 2755. 338 PUBLIC WAYS. 2680-2685 AETICLE V. PERFORMANCE OF HIGHWAY LABOR AND COMMUTATION. 2680. Persons must not work out of district. Sec. 2G80. Road overseers must not require an individual to work out of the district in which he resides, 2681. Employers responsible for higlnvay labor assessed to employees. Sec. 2681. Corporations or other employers of residents in any hip^hway district, are responsible for the road poll tax assessed against their employees, and a notice to the employer or managing agent requiring the payment of the road poll tax of the employee, charges such employer or corporation with such road poll tax. 2682. Pencdty for loss of time or idleness — Substitutes. Sec. 2682. Each person appearing must actually work eight hours each day, to be credited to him by the overseer; for every hour unuecessaril}' lost or idled away he must be charged two hours, to be worked out on some other day under notice from the overseer. Any person may work by an able-bodied substitute. 2683. Pencdty neglect. Sec 2683. Every person receiving due notice, who does not appear and labor or commute, is delinquent. 2684. Excuse for neglect no exemption. Sec. 2684. The overseer's acceptance of an excuse for a neglect in no case exempts the person excused from performing or commuting for the whole number of days work for which he was assessed. 2685. Overseers, to ivhom and what to report. Sec. 2685. Every overseer must make to the commissioner of highways or board of supervisors, semi-annually, a written account, under oath, containing: 1. The names of all persons assessed to work in his district; 2. The names of all who have actually worked, and the number of days; 3. The names of all who have commuted, and the amount received from them; 4. The names of all delinquents, and the amount collected from them; 5. A full return by items of the amount of labor and money expended at each separate point, and the manner in which, and the time when the same was done; 6. The number of road poll tax receipts sold, and those returned unsold; 7. An accurate account of every day he himself was employed, and the nature and items of the service rendered. [Amended for certain counties (see ante 2619, and post 2755) as follows:] Sec 2685. Every overseer must make to the board of supervisors, semi- annually, a written account, under oath, containing: 1. The names of all persons assessed to work in his district; 2. The names of all who have actually worked, and the number of days; 3. The names of all who have commuted, and the amount received from them; 4. The names of all delinquents, and the amount collected from them; 5. A full return by items of the amount of labor and money expended at each separate point, and the manner in which, and the time when the same was done; 6. The number of road poll tax receipts sold, and those returned unsold; 7. An accurate account of every day he himself was employed, and the nature and items of the service rendered. [Amendment, approved March 30, 1874; Amendments 1873-4, 122; took effect as indicated, post, 2755. 339 2686-2699 POLITICAL CODE. 2686. I^cporis, by icliom and ivhal. Sec. 2686. The commissioner of liigliwajs and tlie 'boiird of supervisors may require special reports from road overseers when deemed proper. The commis- sioner of highways must report to the board of supervisors all reports of road overseers made to him, showing- airtlie facts_contained in their reports made to him. I Repealed as to certain counties March 30, 1874; Amendments 1873-4, 123; took effect as indicated, post, 2755.] 2687. JReport of unexpended moneys. Sec 2687. The commissioner of highways and road overseers must accom- pany their reports with all unexpended moneys remaining in their hands at the date of the report, and a statement of all moneys in the county treasury to the credit of their road district. [Amended for certain counties (see ante 2619, and post 2755) as follows:] Sec 2687. Road overseers must accompany their reports with all unexpended moneys remaining in their hands at the date of the report. [Amendment, ap- proved March 30, 1874; Amendments, 1873-4, 123; took effect as indicated, post, 2755. 2688. Penalty for failure to rejoort or pay over. Sec. 2688. A failure to make a report as required, or to j^ay over, on the order of the commissioner of highways or of the board of supervisors, any moneys in his hands, subjects the overseer to a penalty of tAventy-five dollars, to be recovered in an action on his bond, together with any balance due from him; suit therefor may be instituted by the commissioner of highways or dis- trict attorney, under order of the board of supervisors. [Amended for certain counties (see ante 2619, and post 2755) as follows:] Sec. 2688. A failure to make a report as required, or to pay over, on the order of the board of supervisors, any moneys in his hands, subjects the over- seer to a penalty of twenty-five dollars, to be recovered in an action on his bond, together with any balance due from him. Suit therefor may be instituted by the district attorney, under order of the board of supervisors. YAmendment, approved March 30, 1874; Amendments 1873-4, 123; took effect as indicated, post, 2755. ARTICLE VI. LAYING OUT, ALTEKING AND DISCONTINUING EOADS. 2698. T17;o n^ay apply for change. Sec 2698. Any ten inhabitants of a road district taxable therein for road purposes may petition in writing the commissioner of highways or the board of supervisors to alter or discontinue any road, or to lay out a new road therein. [Amended for certain counties (see ante 2619, and post 2755) as follows:] Sec. 2698. Any ten inhabitants of a road district, taxable therein for road purposes, may petition in writing the board of supervisors, to alter or discon- tinue any road, or to lay out a new road therein. [Amendment, approved March 30, 1874; Amendments 1873-4, 123; took effect as indicated, post, 2755. 2699. Wliat the petition must show. Sec 2699. The petition must set forth and describe particularly the road to be abandoned, discontinued, altei'ed, or constructed, and the general route thereof, over what lands, and who the owners thereof are, whether the owners consent thereto, and if not, the probable cost of the right of way, the necessity for and the advantages of the proposed change. 340 PUBLIC WAYS. 2700-2704 2700. The peiitioners lo give bonds for cof' OF TOLL EOADS. 2779. 2\otice of and application to construct the road. Sec. 2779. If all lands necessary for the road-bed and other purposes are not otherwise acquired as hereinafter provided, the company proposing to construct a toll road through any part of a county must publish a notice in some news- paper published therein, and if none, then the newspaper nearest thereto, once in each week for six consecutive weeks, specifying the character of the road, the termini, and each town, city, or village through which it is proposed to construct it, and the time when the application hereinafter required will be made. After 349 2779-2786 POLITICAL CODE. such notice is complete, on the day sj^ecified therein, application must be made to the board of supervisors of the county for authority to take the necessary land and to construct the road described in the notice. 2780. Special meeting of supervisors. Sec. 2780. On application therefor the president of the board of supervisors may call a special meeting to hear the application, ten days' notice thereof being served on each of the other supervisors, either i^ersonally or by leaving it at his place of residence, if absent; the expense of such special meeting and serving notices must be paid bj- the aj^plicant. 2781. Hearing the application. Sec. 2781. On the hearing, all residents of the county and others interested may appear and be heard. The board may take testimony, or authorize it to be taken by any officer of the county, and adjoui*n the hearing from time to time. 2782. Action of supervisors. Skc. 2782. If it appears to the board of supervisors that the public interests vrill be promoted thereby, a majority of all the members thereof may grant the application, and by order authorize the company to take the real property necessary, and appoint two commissioners to lay out the road, who are disin- terested either in the company or in any land sought to be taken or adjoining thereto. A coj^y of this order must be recorded in the county clerk's office before action under it is had. 2783. Commissioners, how appointed for other counties and by corporation. Sec. 2783. If the route extends into more than one county the application must specify their names, and the board of supervisors of each of such coun- ties must ajipoint commissioners to act in their respective counties with the commissioner and surveyor of the company. The company must appoint one commissioner of like qvialification as those appointed by the board of supervi- sors, and furnish a surveyor to accomj)any and act with them. 2784. Laying out the road. Sec. 2784. The commissioners must take the oath of office, and view and lay out the road as in their judgment will best promote the public interest. They must hear all persons interested, and may take testimony; they may determine the breadth of the way, not exceeding one hundred feet, except where the com- pany acquire a greater breadth by grant. They must make, sign, and certify an accurate survey and description of the route and of the land necessary for the road, buildings, and gates in each county, and record the same in the office of the county clerk thereof. When the breadth of the road is not fixed by the commissioners it may be fixed by the commissioner of highways or the board of supervisors of the county. 2785. Compensation of commissioners, map and report. Sec. 2785. The company must pay to each commissioner his expenses and four dollars a day for his services ; cause their surveyor to make the maj) of the projiosed road, which, wlien approved and certified by the commissioners, must be filed with the report in the office of the clerk of the board of supervisors and recorded. 2786. Branches and extensions. Sec 278G. The directors of any such company may, with the written consent of the holders of two thirds of the stock, proceed in the manner prescribed by the preceling seven sections to construct branches to their road, or to extend it or alter any jiart of its route or branches. 350 PUBLIC WAYS. 2787-2795 2787. Acquiring lands by grant. Sec. 2787. Lands necessary for tlie purposes of the road or appurtenances may be acquired by jjurchase or condemnation. Lands within any hif^hway may be granted by the boartl of supervisors or town or cit}' authorities on such terms and for such sums as may be agreed upon. 2788. Appropriation of damages /or higlnvays taken. Sec. 2788. When the road company desires the exclusive use of lands forming' part of a highway, and such use is granted by the supervisors, the damages received therefor are to be paid to the road fund of the road district in which the same is situated. 2789. Application, when unnecessary. Sec 2789. When the company has obtained all the lands necessary in any county, by purchase or agreement, the road may be constructed without making the ajiplication to the board of supervisors hereinbefore provided for; but before proceeding to do so an accurate survey of such part of the road must be made by a practical surveyor, signed and sworn to bj^the president and secretary, and recorded in the county clerk's office; and if the road extends into another county, authority to construct the road there must be first obtained. 2790. Orchards and gardens. Sec. 2790. No such road must be laid out through any orchard of four years growth, to the injury of the fruit trees, or any garden of four years cultivation, or any dwelling-house or building connected with a dwelling-house, or any yard or inclosure necessary thereto, without the consent of the owner. 2791. Bridging streams. Sec. 2791. The road company may bridge any stream or river on the route of their road, when not within the limits prescribed by law for the erection and maintenance of any other bridge; and in bridging streams used for rafting lumber the bridge must be so constructed as not to prevent or endanger the passage of any raft forty feet in width. 2792. One road coiy oration using the road-bed of another. Sec. 2792. No j)lank-road company must construct its road on the road of another company, excej)t in case of crossings, without consent of the latter. 2793. How to be constructed. Sec 2793. Every such road must be laid out at least fifty feet wide. The track of plank roads must be constructed eighteen feet wide, of timber, plank or other hard material. The track of turnpikes must be bedded with stone, gravel or such other hard material found on the line thereof, to the width of eighteen feet, and faced with broken stone or gravel. The common wagon road must be graded at least twelve feet in width, and so constructed with necessary turnouts as to permit vehicles to pass each other conveniently. All the roads must be ditched on the sides when practicable, and have jiroper and necessary sewerage, and be so constructed that vehicles may j)ass on and off the track at all intersections of roads. 2794. May relay with what. Sec 2794. Eveiy com}Dany that has once laid their road with plank may relay it or any part of it with broken stone, gravel, shells or other hard material whereby they keep a good, substantial road. 2795. Milestones and posts. Sec 2795. A milestone or post must be maintained at every mile, with an inscription showing the distance from the commencement of the road. If the road commences at the end of any other road, or intersects therewith, having milestones or posts on which the distance from any city or town is marked, a continuation of that distance must also be inscribed. 351 2796-2801 POLITICAL CODE. 2796. Guide-posts. Sec. 2796. A guide-post must be erected at every place where the road is in- tersected by a public road, with an inscription showing the name of the place to which such intersecting road leads, in the direction to which the name on the guide-post points. 2797. Inspection, certificate, and completion. Sec. 2797. When the road, or three consecutive miles thereof, is completed, the commissioner of highways, or such road overseer or other person thereto specially appointed by the board of supervisors of the county, must iiispect the road when requested, and if satisfied that the road conforms to the requirements of the law, must certify to the facts and file the certificate in the oifice of the county clerk; for such service four dollars per day must be by the company joaid to the inspector or commissioner. When only three miles of any plank road are completed, if it is not the entire road, tolls must not be collected thereon for more than one year, unless the road or five consecutive miles are completed within the year. 2798. Erection of gates, etc. Sec. 2798. When the certificate of completion is filed toll gates may be erected and tolls collected. No toll gate, toll house, or other building must be put up within ten rods of the front of any dwelling-house, barn or outhouse, without the written consent of the owner thereof. 2799. Abandonment of road, and what becomes of it. Sec. 2799, Whenever the holders of two thirds of the stock consent, the di- rectors of any company may abandon the whole or any part of their road at either or both ends, by written surrender thereof, attested by their seal, and acknowledged by the president and secretary as a deed or grant is acknowl- edged, and recorded in the clerk's office of each county where the surrendered road lies; thereafter the surrendered road belongs to the road districts in which it lies, but the company may continue to take toll on any three consecutive miles in length not so surrendered. 2800. County may purchase road, how. Sec. 2800. At any time within five years from filing the certificate of comple- tion of any road constructed under the provisions of this chapter the county within which the road or any part thereof is located may purchase the same at a fair cash valuation, to be fixed by seven commissioners, all disinterested per- sons, three to be appointed by the board of supervisors of the county, three by the owner of the road, and the seventh by the county judge, who must estimate the fair cash value of the road and make report thereof under oath to the board of supervisors. If within three months after filing the report the ai:>praised value thereof is tendered on behalf of the county to the owner of the road, or his authorized managingagent, in gold coin, the right of the owner to take tolls on the road is terminated, and the road becomes the property of the county. 2801. How the appraisement and award is made, and its effect. Sec 2801. A majority of the board of commissioners mentioned in the j)re- ceding section constitute a quorum, and the concurrence of a majority in making the estimate and award is binding upon the road owner if approved by the board of supervisors. The commissioners must make their report within thirty days after their apjiointment, and if approved, the tender of the amount of the appraisement and award must be made by the county treasurer; whether the owner conveys the road to the county or not, the report and tender operate as a conveyance to the county of the road and all its incidents and appur- tenances. 352 PUBLIC WAYS. 2814-2828 AKTICLE II. USE OP TOLL EOADS, AND OBSTRUCTIONS THEREON. 2814. Persons exempt frovi tolls. Sec. 2814. The followmg persons, and none other, are exempt from payment of toll on wagon, turnpike, or plank roads: 1. Persons going to and from any funeral, and all funeral processions; 2. Troops in actual service of the state or of the United States, and persons going to or from a militia training which by law they are required to attend; 3. Persons going to or from the court-house in obedience to a subpoena in a criminal action; 4. Persons living within a mile of any gate by the most usuall}^ traveled road may pass it at one half toll, when not engaged in the transportation of others or the proj)erty of others; 5. Farmers living on their farms within one mile of any gate by the most usually traveled road may pass free when going to or from their work on such farms; 6. School children attending school within three miles of their j)arental or boarding houses. 2815. Encroachments, hoiv removed. Sec. 2815. On application by an officer of the company the commissioner of highways or road overseer of the district where the same exists, may inquire into any encroachment ujjon the lands of the company used for the i:)urposes of the road, caused by fence, building, or otherwise, and he must, if he finds it does exist, require or cause its removal as provided for highway encroachments in Article VIII, Chapter II of this Title. 2816. Who liable for penalty, and lohat. Sec. 2816. Every person who, having the control thereof, neglects to remove an encroachment after being notified thereof, or permits the same to remain after notice, unless he immediately commences and diligently prosecutes its removal to coniiDletion, is Hable to a i^enalty of five dollars for every day of such neglect or failure. 2817. Action for penalty or trespass. Sec 2817. An action for the penalties given by this chapter, and for any trespass on or injury to such road may be maintained in the county where the act was done, or in that where the defendant resides, by the company. AETICLE III. INSPECTION AND REPAIRS. 2827. Inspection of roads, by xohom, and how repairs to be made. Sec 2827. Every commissioner of highways or road overseer of the district to whom complaint in writing is made that any part of a wagon, turnpike, or plank toll road in his county or district, or any part of such road, the gate nearest to which is in his county or district, is out of repair, must examine it without delay and give notice of the defect, particularly describing the same, to the person attending the gate nearest thereto; if the necessary repair is not made or defect remedied within three days after such notice is given the com- missioner or road overseer may order such gate to be thrown open. 2828. Closing gates, and penalty. Sec 2828. A gate so ordered to be thrown open must not be shut nor any toll collected thereat until the commissioner of highways or road overseer 23 353 2288-2843 POLITICAL CODE. ordering it shut grants a certificate that the road is in sufficient repair, and that the gate ought to be closed. The company and their gatekeeper or other employee, violating or i)ermittiug the violation of this section, or the order made under the preceding section; are each liable in a penalty of twenty -five dollars for each offense, to be recovered by the party aggrieved. 2829. Defects in road, to be reported to whom. Sec. 2829. Every commissioner of highways or road overseer who discovers a defect in any toll road in his cotinty or district, or a gate placed in a situa- tion contrary to law, must give written notice thereof to one or more of the dii-ectors or managing agents of the comjjany, requiring the defective road to be repaired, or the gate to be removed, within a specified time; and may order that in the meantime such gates as he specifies be thrown open. 2830. Enforcing obedience to notice and requirement. Sic. 2830. If the notice and requirements are not obej'ed, the commissioner of highways or road overseer must make immediate complaint to the district attorney of the county, who must prosecute the company therefor in the name of the people for so suffering the road to be out of repair, or of having placed any gate in a situation contrary to the law; and if convicted thereof, the com- pany must be fined not exceeding two hundred and fifty dollars. 2831. Fees of commissioner or overseer, ivhat, and how paid. Sec. 2831. The commissioner of highways or road overseer complaining to the district attorney, or who makes inspection and discovers defects in tberoad, is entitled to three dollars for each day's services in inspecting the road, or necessarily expended in prosecuting the action therefor, to be paid in case of conviction as costs. When no action is had, but repairs are made, or gate re- moved, on the inspection and requirement of the commissioner of highways or road overseer, the toll gatherer nearest the road so out of repair, or the gate to be moved, must pay the fees hereinbefore sj)ecified out of the tolls collected ; if he refuse to jiay the same, the same may be recovered by action, with costs. 2832. Pack frails in mountain district,":. Sec. 2832. The boards of sujoervisors of the several counties of this state are hereby authorized to permit the toll road companies heretofore or which may hereafter be organized under the provisions of this code, for the purpose of constnicting toll roads within the mountain districts of this state, to first con- struct on the line of their proposed toll road a pack trail for the accommoda- tion of pack trains and horsemen, and to collect tolls thereon ; the board of supervisors shall fix the amount of license to be paid and tolls to be collected on such pack trail, and that no such permit or franchise shall be granted for a longer period than two years. [New section, approved March 30, 1874 ; Amend- ments 1873-4, 131 ; took effect from passarje. CHAPTER IV. PUBLIC FERRIES AND TOLL BRIDGES. AUTICLB I. GENEHATi PbOVLSIONS 2843 II. Toll Bridges. 2.S70 III. Toll Febeies 2892 ARTICLE I. GENERAL PROVISIONS. 2843. What hoard to grant authorlly to construct. Sec. 2843. "When authority to construct a toll bridge or to erect and keei? a 354 PUBLIC WAYS. 2843-2848 ferry over waters dividing two counties is desired, application must be made to the board of supervisors of that county situated on the left bank descending sucli bay, river, creek, slough, or arm of the sea. 2844. Notice must he proved. Sec. 2844. The board of suj)ervisors must not grant authority to construct or erect a toll bridge or ferry until the notice of such intended application has been given as respectively required in Articles II and III of this chaj)ter. 2845. Duty of the hoard of supervisors granting authority. Sec. 2845. The board of supervisors granting authority to construct a toll iaridge or to keep a public ferry, must at the same time : 1. Fix the amount of a penal bond to be given by the person or corjioration owning or taking tolls on the bridge or feriy for the benefit of the county and all persons crossing or desiring to cross the same, and provide for the annual renewal thereof ; 2. Fix the amount of license tax to be paid by the person or corporation for taking tolls thereon, not less than three nor over one hundred dollars per month, payable annually; 3. Fix the rate of tolls which may be collected for crossing the bridge or ferry, which must not raise annually an income exceeding fifteen per cent, on the actual cost of the construction or erection and maintenance of the bridge or ferry for the first year, nor on the fair cash value together with the rej)airs and maintenance thereof for any succeeding year; 4. Make all necessary orders relative to the construction, erection, and busi- ness of licensed toll bridges or ferries which they have by law the power to make. The board of supervisors ma}', at any time they see fit, authorize and maintain fords across any water within any distance of any licensed toll bridge or ferry. 2846. License tax and rate of tolls, how fixed. Sec. 2846. The license tax and rate of toll fixed as j^rovided in the preceding section must not be increased or diminished during the term of twenty years, at any time, unless it is shown to the satisfaction of the board of supervisors that the receipts from tolls in any one year is disproportionate to the cost of construction or erection, or the fair cash value thereof, together with the cost of all necessary repairs and maintenance of the bridge or ferry. The license tax fixed by the board of supervisor's must not exceed ten per cent, of the tolls annually collected. 2347. Report ofhi'idge or ferry owner or keeper. Sec. 2847. Every owner or keeper of a toll bridge or ferry must report annu- ally to the board of supervisors from which his license is obtained, under oath, the following facts: 1. The actual cost of the construction or ei'ection, and equipment of the toll bridge or ferry; 2. The repairs made during the preceding year, and the actual cost thereof; 3. The exjjense of labor and hire of agents, and other costs necessarily incurred in and about the conduct of their business; 4. The amount of tolls collected; and, 5. The estimated actual cash value of the bridge or feriy, exclusive of the franchise. 2848. Inquiry of hoard of supervisors fixing tolls. Sec 2848. "Whenever the board of supervisors are about to fix the license tax and rate of tolls on a bridge or ferry they must make inquiry into the present actual cash value and the cost of all necessary repaii's and maintenance thereof, and for that purpose may examine, under oath, the owner or keeper of the 355 2848-2853 POLITICAL CODE. same, and other witnesses, and the assessed vahie of the bridge or ierrj on the assessment roll of the county. "When the estimate of the board is made, if the same is not agreed to by the owner or keeper of the bridge or feriy, the same must be fixed by three commissioners, one to be appointed by the board of supervisor^, one by the owner and keeper, and the third by the county judge, who must hear testimouy and fix such value and cost according to the facts, and report the same to the board of supenisors under oath. In all estimates of the fair cash value of the bridge or ferij the value of the franchise must not be taken into consideration. 2849. TI7i''?i to direct license to issue. Sec. 284:9. When the cost of construction or erection and equipment of the bridge or ferry, or the fair cash value thereof, together with the cost of needed repair's and the conduct and maintenance of the same, is ascertained and fixed for the preceding year, the board must on such ascertained amount fix the annual license tax rate of tolls, aud the amount of the penal bond, and direct a license to be issued by the clerk. An Act to enforce the collection of license taxes. Approved March 21, 1872; 1871-2, 539. Delinquent ferry and bridge license tax. Section 1. Whenever any person who is required by law to pay a ferry or bridge license tax neglects to pay the same for the period of thirty days after the same is due or payaltle, the collector of such taxes must notify the district attorney thereof, who must at once institute proceedings against such person. Sec. 2. This act shall be in force from and after its passage. 2850. Bond, conditions and execution. Sec. 2850. The bond required of the owner or keeper of the toll bridge or ferry must be in the sum fixed by the board of supervisors, with one or more sureties, and conditioned that the toll bridge or ferry will be kept in good repair and condition, and that the keeper will faithfully comply with the laws of the state and all legal orders of the board of supervisors regulating the same, and pay all damages recovered against him by any person injured or damaged by reason of delay at or defect in such bridge or ferry, or in any manner resulting from a non-compliance with the laws or lawful orders regu- lating the same. The bond must be approved by the president and filed with the clerk of the board of supervisors. 2851. When bridge imites tiuo coitnties. Sec 2851. The license tax for a ferry or bridge connecting two counties must be paid to the treasurer of the county granting it, and the license issued by the auditor thereof; but the treasurer of such county must pay to the treasury of the county in which the other end or landing of the bridge or feny is located one half the sum so received annually, or the auditor may issue the license on filing with him receii)ts for their respective halves of the tax taken from the treasurer of each of the two counties. 2852. ^Vllen Ijoard divided, countg judge to act. Sec. 2852. When a supervisor is interested in an application to erect, con- struct, or take tolls, or alter tolls on a bridge or ferry, the county judge of the county must act in his stead. 2853. Toll bridge or ferry within one mile of aiwther, tnhen. Sec. 2853. No toll bridge or feny must be established within one mile im- mediately above or below a regularly established feny or toll bridge, unless the situation of a town or village, the crossing of a public highway, or the intersection of some creek or ravine rendfrs it necessary for public convenience. 350 PUBLIC WAYS. 2853-2871 In addition to the public notice hereinafter required, notice of intention to apply for authority to erect a toll-bridge or ferry, as in this section provided, must be served upon the proprietor of the ferry or toll biidge already estab- lished at least ten days prior thereto, giving the time and place and grounds of such application. 2854. Oivner of land preferred to build, bridge or ferry. Sec. 2854. The owner of land on either side of the waters to be crossed, and the owner of the land on the left bank descending over the owner of land on the right bank, is entitled to preference in procuring authority to construct a bridge or ferry; but where such owner fails or neglects to apply for such authority within a reasonable time after the necessity therefor arises, the board of sujjervisors may grant such authority to another. 2855. How lands acquired for use of bridge or ferry. Sec. 2855. When there are lands necessary for the construction, erection, or use of such bridge or ferry which cannot be procured bj' agreement between the owner or corporation and the landowner, the right of way and all other lands necessary for the use and construction or erection thereof may be ac- quired by condemnation. 2856. Must post i-ates of toll. Sec. 2856. Every licensed toll bridge or ferry must have the rates of toll, as fixed by the board of supervisors, printed or written, posted up in some con- spicuous place on or near the bridge or feiTy. 2857. Revenue derived from license, how disposed of. Sec. 2857. The proceeds of the license tax on ferries and toll bridges must be* paid into the county treasury for the use of roads and highways, or may be used by the board of supervisors at any time in the purchase of toll roads and toll bridges. 2858. To keep banks in repair. Sec 2858. All ferry and toll bridge keepers must keep the banks of the streams or waters at the landings of their ferries or bridges graded and in good order for the j^assage of vehicles. For every day compliance herewith is neglected twenty-five dollars is forfeited, to be collected for the use of the road fund of the county. AETICLE II. TOLL BRIDGES. 2870. Application for leave to construct. Sec 2870. Every applicant for authority to construct a toll bridge must pub- lish a notice in at least one newspaper in each county in which the bridge or any part of it is to be, or if no paper is published therein, in an adjoining county, once in each week for six successive weeks, specifying the location, the length and breadth of the bridge, and the time at which the application herein- after required will be made. After notice is given, application must be made to the board of supervisors of the proper county, at any meeting specified in the notice, for authority to construct it. 2871. Hearing application. Sec 2871. On the hearing, any person may appear and be heard. The board may take testimony or authorize it to be taken by any judicial officer of the county; and it may adjourn the hearing from time to time. A copy of the arti- cles of incorporation, certified by the secretary of state, or by the clerk where they are filed, must be attached to and filed with the application if made by a corporation. 357 2872-2878 POLITICAL CODE. 2872. Adion of hoard of supei'visoj's. Sec. 2872. If the board are of opinion that the public interests -svill be pro- moted thereby, it may, by the assent of a majorit}' of all the members of the board, grant the application by an order entered in its minutes, and particu- larly describing the bridge. The applicant must cause a certified copy of the order, with a copy of the application, to be recorded in the office of the clerk of the county before jjroceeding under it. [The following act, though by its title supplemental to an act which has been sui)erseded, is supposed to be in force:] An Act supplemental to an act entitled "An Act snpi^lementary to an act concerning public ferries and toll bridges, ap])roved April 28, 1855," approved April -4, 1870. Approved March 24, 1874; 1873-4, 581. No bridges on certain i-iveis and slreayns. Section 1. Boards of supervisors shall not have power to license bridges across the Sacramento or San Joaquin rivers, the Petaluma, Napa, or Sonoma creeks, except at points above the head of navigation on said streams. Sec. 2. This act shall be in force from and after its passage. 2873. W}iat board of superviaors may require. Sec. 2873. The board of supervisors may, at the time of granting authority to construct a toll bridge, by order, require the bridge to be constructed within a certain time, to be of a certain width, character, or description, and to be con- structed of certain materials, which order must be complied with by the owner or corporation constructing the same before license to take tolls is issued. 2874. Use ofhighicays. Sec 2874. The corporation or bridge owner ma}' use, in such manner as pre- scribed by the be ard, so much of any j^ublic road 'on either side of the stream or waters as may be necessary for constructing and maintaining the bridge and toll houses. 2875. Hoic constructed over navigable luaterfi. Sec. 2875. All bridges constructed under this chapter crossing navigable streams must be so constructed as not to obstruct navigation, and must have a draw or swing of sufficient sj^ace or span to permit the safe, convenient, and expeditious passage at all times of any steamer, vessel, or raft which msiy navi- gate the stream or water bridged. 2876. Supervisors may regulate iveigld, number, and attendance. Sec 287G. The board of supervisors may, by order, regulate and govern the amount of weight and number of animals that may be driven on to a toll bridge at any one time, and prescribe rules for the government of the draws or swings and attendance of the same, and prescribe penalties for disobedience of such rules. 2877. Channel of streams navigable by rafts to be kept clear. Sec. 2877. Any one bridging a stream navigated or navigable must at all times keep the channel above and below the bridge clear from all deposits occasioned by its erection and prejudicial to such navigation, and is liable to pay to all persons unreasonably hindered or delayed in passing such bridge with rafts or vessels all damages sustained therebj'. 2878. Completion of bridge, rate of toll, and license tax. Sec 2878. Every bridge erected under these provisions must have good and substantial railings or sidings, at least four and a half feet high. When a bridge is completed, and a certificate that it is so, and is safe and convenient for the public use, is signed by the commissioner of highways or president of the 358 PUBLIC WAYS. 2878-2894 board of supervisors, find filed iu the eountj^ clerk's office in the county or counties in which it is located, the directors or owner may erect a toll gate at such bridge and require such tolls as the boards of supervisors of the county or counties from time to time i^rescribe. A license therefor must be issued by the auditor of the county on giving the necessary bond and paying the license tax fixed therefor. 2879. Persons exempt. Sec. 2879. Any person going to or from a funeral, school, performing high- way labor, or attending a military jjarade, or court which by law he is required to attend as a witness in a criminal case, is exempt from the j^ayment of tolls. • 2880. Penalty for avoiding tolls. Sec. 2880. Any person liable to pay toll, forcibly or fraudulently passing the gate of a toll bridge without paying the toll is liable to a penalty of ten dollars iu addition to the damages caused, to be recovered by the owner. 2881. County may purchase toll bridge. Sec. 2881. Within the same time, in like manner, and to the same effect as toll roads are purchased under the j^rovisions of 'sections 2802 and 2803, the county or counties, jointly acting, in which the same is situated, may purchase a toll bridge constructed under the provisions of this chapter. ARTICLE III. TOLL FERRIES. 2892. Application for leave to erect, and notice. Sec 2892. Every aj^plicant for authority to erect and take tolls on a public ferry must publish a notice in at least one newspaper in each county in which the ferry is or touches, or if there is no newspaper j)ublished therein, then in one published in an adjoining county, and by posting three notices in three public places in the township for four successive weeks, specifj'ing the location and the time and j^lace when and where the apj)lication will be made. After notice is given application must be made in writing, under oath, to the board of supervisors of the proper county, the landings of the proposed ferry must be described, and the names of the owners thereof given, if known; and if the applicant is not the owner of the land, that notice of the application has been sensed on the owner thereof at least ten days prior to the application. 2893. Duty of board of supervisors. Sec. 2893. At the hearing, jjroof of giving the notice, as required by the preceding section, must be made, and any person may appear and contest the application. If the board finds that the ferry is either a public necessity or convenience, and that the applicant is a suitable person, and by reason of own- ership of the landing or failure of the owner thereof to apply is entitled thereto, authority to erect and take tolls on the ferry may be granted to him for the term of twenty years. 2894. Powers of board of supervisors. Sec. 2894. The board of suj)ervisors may make all needful rules and regu- lations for the government of ferries and ferry keepers, prescribing: 1. How many boats must be kept, their character, and how propelled; 2. The number of hands, boatmen, or ferrymen to be employed, and rules for their government; 3. How many trips to be made daily; 4. When and under what circumstances to make trips in the night time; 5. AVho may be feri'ied free of toll; 6. In what cases of danger or peril not to cross; 859 289^2910 POLITICAL CODE. 7. Penalties for Tiolation of regulations; 8. In case of steamboats, the rate of s^^eed; 9. The method of and preference in loading and crossing; and, 10. How and by whom action must be brought to recover jDenalties. 2895. Penalties, how disposed of. Sec. 2895. Penalties recovered under this article must be paid to the county treasurer for the use of the general road fund of the county. CHAPTEK V. WHARVES, CHUTES, AND PIERS. 2906. Board of supervisors to authorize construction. Sec. 290G. The boards of supervisors of every county in this state may grant authority to any person or corporation to construct a wharf, chute, or pier, on any lands bordering on any navigable bay, lake, inlet, creek, slough, or arm of the sea, situate in or bounding their counties respectively, with a license to take tolls for the use of the same for the term of twenty years. 2907. Application, ivhai to contain and hoiv made. Sec. 2907. Application therefor must be made by publishing notice as required in section 2892, and filing a petition in writing, containing: 1. The name and residence of the applicant; and if a corporation, a certified copy of the articles of incorporation; 2. A map of the waters, and the name and location thereof, and of the adjoining lands; 3. A plan of the wharf, chute, or pier proi:)Osed to be constructed, and of the land within three hundred feet thereof; 4. The names of the owners of the lands, and the quantity thereof sought to be used, and whether the right to use the same is or is to be acquired by the appUcaut; 5. The distance it is proposed to extend the wharf, chute, or pier into the waters ; G. The estimated cost of the construction of the wharf, chute, or pier; and, 7. The time when the application will be made. 2908. What petition to contain, relative to lands not owned by applicant. Sec. 2908. "When any lands are sought to be appropriated and used for a wharf, chute, or inev, of which the applicant is not the owner, or the right of way and use thereof has not been obtained by agreement, these facts and the particular description of such land must be set forth in the petition of the applicant, and a copy of the notice of application must be served on the owner thereof by the sheriff of the county, whose official return is conclusive evidence of service, at least ten days prior to the appointed day set for the hearing of the same. 2909. J 2962. Certain vessels exempted. Sec. 2902. Masters of vessels arriving at any of the ports of this state from any port in this state, or from Oregon, or "Washington territory, are exempt from making the statement required by this chajiter when the vessels in which the}' arrive have not taken on board at their port of departure, or at any inter- mediate port, any alien passenger, to pe landed at the port of arrival; and mas- ters of vessels ariuving from Panama are also exempted from the provisions of this chapter when they have not landed, or are not about to land, passengers who took their departure from ports other than the port of New York; and in no case must such master l.)e required to rejiort any passenger other than way passen- gers taken on board between the port of New York and the port of arrival in this state. 2963. Certain persons exempted. Sec. 2963. The consuls, ministers, agents or other public functionaries of any (a) The original aection after the words " flius or penalties," had the wordB " or other sources." 368 GENEKAL POLICE OF STATE. 2963-29G8 foreign government, arriving in this state in their official capacity, are exempt from the provisions of this chapter. 2964. Poivers and duties of commissiovers of immigralion. Sec. 2964. The commissioner of immigration must approve all bonds and administer all oaths required in the discharge of his duties. Whenever it appears that the master or commander of any vessel has not made a full and correct rej)ort, as provided by this chapter, the commissioner must inquire into the same, and for that purpose may require the attendance of witnesses before him in the same manner as notaries public may in civil cases. Testimony so taken may be read as evidence on the trial of any action commenced for any penalty or forfeiture accruing under the provisions of this chapter in the same manner and with the like effect as if regularly taken in such action. 2965. Same and fees. Sec. 2965. The commissioner of immigration must prepare all bonds required to be given by the owners or consignees, masters, captains, or commanders of vessels, and administer the oaths to the sureties upon such bonds, and for each bond he may charge and collect a fee of three dollars, and for the administra- tion of each oath he may charge one dollar; and if he neglects to administer the oath to such sureties, or to require them to justify on each bond, as required herein, or if he demands or receives any other or larger fees, commissions, or compensation for services than is expressly allowed in this chapter, he shall pay to the State of California the penal sum of one hundred dollars for each offense. 2968. Ex officio coniviissioners. Sec. 2966. In all ports in this state, other than San Francisco, the mayor or chief municipal officer at such port, or if there be none such, then the sheriff of that county is ex officio commissioner of immigration for such port, and in carrying out the provisions of this chapter, and has all the powers and is liable to all the penalties provided herein. 2967. [Sec. 2967^"^ was repealed by act, approved March 30, 1874; Amend- ments 1873-4, 42; took effect immediately.] 2968. Bond of commissioner. Sec. 2968. The commissioner of immigration for the port of San Francisco must execute an official bond in the sum of twenty-five hundred dollars. {Amendment, approved March 25, 1876 ; Amendments 1875-6, 53 ; took effect immediately.'-^^ CHAPTEK II. PRESERVATION OF PUBLIC HEALTH. Aeticle I. State Board of Health 2978 II. Vaccine Agent 2993 III. Health and Quarantine Regulations for the City and Harbor or San Francisco 3004 IV. Health Eegulations for the City of Sacramento 3042 V. Health and Quarantine of other Cities, Towns, and Harbors 3059 fa) Repealed section: pensatlon for his services, and the other three fourths Sec. 2967. The district attorney of any county in must be paid into the county treasMyof the county, which the provisions of this chapter may be violated to be paid into the state treasury for state piirposes. must collect and enforce the payment of all penalties (6) The original section instead of "hundred, had to the state incurred hereunder. One fourth of the the word " thousand." money so collected must be retained by him as com- 24 369 2978-2993 POLITICAL CODE. ARTICLE L STATE BOARD OF HEALTH. 2978. Who co7isiifuics (he stale board. Sec. 2978. The state board of health consists of seven physicians — two of the city of Sacramento, and five from other portions of the state — appointed by the governor for the term of four years. 2979. Duties. Sec. 2979. The state board of health must place themselves in communication with the local boards of health, hospitals, asylums, and public institutions throughout the state, and take cognizance of the interests of health and life among the citizens generally. They must make sanitary investigations and inquiries respecting the causes of disease, especially of epidemics, the source of mortality', and the effects of localities, emj^loyments, conditions, and circum- stances on the public health, and gather such information in respect to these matters as they may deem proper for diffusion among the people. They may devise some scheme whereby medical and vital statistics of sanitary value can be obtained, and act as an advisory board to the state in all hygienic and medical matters, especially such as relate to the location, construction, sewerage, and administration of prisons, hospitals, asylums, and other public institutions. They must, at each biennial session of the legislature, make a report, with such suggestions as to legislative action as they deem proper. 2980. To report rts to the effect of intoxicating liquors. Sec. 2980. The board must examine into and report what, in their best jridg- ment, is the effect of the use of intoxicating liquor as a beverage upon the industry, prosperity, happiness, health and lives of the citizens of the state; also, what legislation, if any, is necessary in the premises. 2981. Tiiyie and place of meeting — President and secretary. Sec. 2981. The board must meet at the capital of the state, at least once in every three months. They must elect from their own number a president and a permanent secretary; the latter must reside at the capital, and is their execu- tive officer. No member, except the secretar}^, receives any compensation; but the actual traveling expenses of the members, while engaged in the duties of the board, are allowed, and paid out of the general fund. 2982. Duties of secretary, and salary. Sec. 2982. The secretary must superintend the work and perform such other duties as the board may require. He must furnish the legislature, when in session, such information cognate to this chapter as, from time to time, may be necessary. An annual salary of twenty-five hundred dollars, and his office and other necessary expenses incurred in the performance of his duties, must be paid to him in the same manner as salaries of state officers are paid. 2983. Kvpenses of, limited. Sec. 2983. The expenses of the board, including the salary of the secretary, must not exceed four thousand dollars per annum. ' ARTICLE 11. VACCINE AGENT. 2993. Agent to ohtain gemdne raccine matter. Sec. 2993. The vaccine agent must obtain a supply of the genuine vaccine matter, and preserve the same for the use and benefit of the citizens of this state. 370 GENEEAL POLICE OF STATE. 2994-30[]9 2994. Compensation and duly of. Sec. 2994. Such agent must furnish genuine vaccine matter, approved hy tlio state board of health, to any reguL'ir practicing physician in good standing in his profession in this state. He may charge and receive for eveiy parcel of vaccine matter furnished the sum of five dollars, which is in full compensation for his services and expenses. ARTICLE III. HEALTH AND QUARANTINE REGULATIONS FOR THE CITY AND HARBOR OF SAN FRANCISCO. 3004. Quarantine grounds, location of. Sec. 3004. The cjuarantine grounds of the bay and harbor of San Francisco are at the anchorage of Saucelito. 3005. Board of health of San Francisco, how constituted. Sec 3005. The board of health of the city and county of San Francisco con- sists of the mayor of the city and county, and four physicians in good standing residing in the city and county of San Francisco, appointed by the governor, and holding their offices for the term of five years. 3006. Mayor ex officio president — Time of meeting . Sec. 3006. The mayor is ex officio president of the board. The board must meet monthly, and at such other times as the president may dii'ect. In the absence of the president, the board may elect a chairman, who is clothed with the same powei^s as the president. 3007. Health officer — His election. Sec 3007. The health officer for the city and county and port of San Fran- cisco is elected by the board of health, and holds office at its pleasure. He must be a graduate of some medical college, in good standing, and must reside within the city limits of San Francisco. 3008. Poxvers. Sec 3008. The health officer may perform all acts which quarantine officers are usually authorized to perform, and he is the executive officer of the board of health. 3009. Deputy health officer, etc., to he appointed. Sec. 3009. The board of health must appoint a deputy health officer, who shall be a physician in good standing ; a secretary, two health inspectors, one market inspector, and one messenger, whose duties must be fixed by the health officer. They must also appoint one resident physician, one assistant resident physician, one steward, one matron, one first aj)othecary, one second apothe- cary, two visiting physicians, two visiting surgeons, as officers of the city and county hospital, in and for the city and county of San Francisco. One each of said visiting j)hysicians and surgeons to be nominated by the faculty of the medical dei^artment of the university of California, and one each of said visit- ing physicians and surgeons to be nominated by the medical college of the Pa- cific. The said board shall also have the i:)ower to appoint one superintendent, one resident physician, one matron, and such other employees as are now au- thorized by law to be employed in and for the almshouse in said city and county. The appointing power aforesaid is vested solel}' in said board of health, and said board shall have power to prescribe the duties of said api^ointees and to remove the same at pleasure. [Amendment , approved March 23, 1874; Amend- ments 1873-4, 132 ; took ef'ect from passage ; repealed conflicting acts.'-"^ [See also amendatory act under next section.] (a) The origiDal Bection consisted of the first sentence alone. 371 3010 POLITICAL CODE. 3010. Compensation of health officers. Sec. 3010, The follo-u-ing annual salaiies are hereby allowed to the officers of the health department and such other officers as are mentioned in section one of this act, viz. : health officer, twentj-foui- hundred dollars ; deputy' health offi- cer, eighteen hundred dollars ; secretary-, two thousand and one hundred dol- lars ; health inspectors, one thousand and two hundred dollars each ; market inspector, one thousand and two hundred dollars ; messenger, nine hundred dollars. All of said salaries must be paid in equal monthly installments, out of the general fund of the city and county of San Francisco, in the same man- ner as the salaries of the other officers of the said city and county are paid. There shall be jDaid to the officers and employees of the city and county hospi- tal, and almshouse, the following annual salaries, viz. : resident physicians, two thousand and four hundred dollars ; assistant resident phj'sicians, fifteen hun- dred dollars ; steward, tifteen hundred dollars ; matron, seven hundred and twenty dollars ; first apothecary-, twelve hundred ; second apothecary, six hun- dred ; visiting physicians and surgeons, twelve hundred dollars each ; superin- tendent of almshouse, eighteen hundred dollars ; resident physician of alms- house, fifteen hundred dollars ; matron of the almshouse, six hundred dollars ; and all other employees of said institutions are to be paid such sums as are now authorized by law, all to be paid in equal monthly installments out of the hos- pital and almshouse fund of said city and county of San Francisco. And the auditor of said city and county is tereby directed to audit the said demands, payable out of the funds aforesaid, upon the apj^roval of the same by the said board of health, and also to audit all demands for salaries of medical attendants and emploj-ees, appointed by the board of health in accordance with this chaj)- ter, for the amounts authorized by law- to be paid when the same shall have been approved by said board. [Amendment, approved March 23, 1874 ; Amendments 1873-4, 133 ; took effect from passage ; repealed conflicting acts}^^ [The "section one of this act," mentioned in the foregoing amendment, refers to tbe amendment of the preceding section 3009. Both sections were further amended by the following act:] An Act to amend an act entitled "An Act to amend sections 3009 and 3010 of the Political Code," approved March 23, 187-i. Approved March 30, 1874; Ameudmeuts 1873-4, 135. Appointmertt of city physician. Section 1. The board of health of the city and county of San Francisco shall alone have the poAver to appoint one city physician, who shall receive an annual salary of nine hundred dollars, which must be paid, in equal monthly install- ments, out of the general fund of the city and county of San Francisco, in the same manner as the salaries of the other officers of said city and county are paid. Appointment of emjyloyees. Sec 2. The said board of health of the city and county of San Francisco may, in their discretion, appoint one engineer and i:)lumber, one first cook, sec- ond cook, one third cook, one baker, one butcher, one clerk and interpreter, one ambulance driver, one gatekeeper, one dresser and sixteen nurses, as em- ployees and medical attendants of the city and county hospital of San Francisco. Salaries. Sec. 3. The following monthly salaries are hereby allowed to said employees and medical attendants mentioned in section 2 of this act: Engineer and plumber, (a) The ori(»lnal section provided for the snme com- first two sentences, down to and including the words pensationto bs paid to the olficers mentioned in the "of the said city and county are paid." 372 GENERAL POLICE OF STATE. 3010-3015 per montli; first cook, $70 per month; second cook, $40 per raontli; tLird cook, $35 per montli; baker, $75 per montli; butcher, $40 per month; clerk and interpreter, $40 per month; ambulance driver, $40 per month; dresser, $50 per month; nurses, $40 per month each. All of said sums must be paid monthly out of the hospital and almshouse fund of said city and county of San Fran- cisco, and the auditor of said city and county is hereby directed to audit the said demands payable out of the fund aforesaid, upon the approval of the same by the said board of health. Sec. 4, This act shall take effect and be in force from and after its passage. 3011. Expenses of health officer. Sec. 3011. The health of&cer, in addition to his salary, receives such sums for the necessary exjDenses of his office as the board of health may direct, and the auditor must audit and the treasurer pay such sums out of the general fund. The board of supervisors must provide proper offices for the health department. 3012. General powers of hoard of health. Sec. 3012. The board of health have general supervision of all matters apper- taining to the sanitary condition of the city and county, including the city and county hospital, the county jail, almshouse, industrial school, and all public health institutions provided by the city and county of San Francisco; and may adopt such orders and regulations, and appoint or discharge such medical attend- ants and emiDloj^ees, as to them seems best to promote the public welfare; and may apipoint as many health inspectors as they deem necessary in time of epidemics. 3013. Shipmasters to report infected vessels. Sec. 3013. Shipmasters bringing vessels into the harbor of San Francisco, and masters, owners, or consignees having vessels in the harbor which have on board any cases of Asiatic cholera, smallpox, yellow, typhus, or ship fever, must report the same, in writing, toihe health officer before landing any passengers, casting anchor, or coming to any wharf, or as soon thereafter as they, or either of them, become aware of the existence of either of these diseases on board of their vessel. 3014. Fasserigers and freight not to be landed without permit . Sec. 3014. No captain or other officer in command of any vessel sailing under a register arriving at the joort of San .Francisco, nor any owner, consignee, agent, or other person having charge of such vessel, must, under a penalty of not less than one hundred dollars nor more than one thousand dollars, land or permit to be landed any freight, passengers, or other persons from such vessel until he has reported to the health officer, presented his bill of health, and received a permit from that officer to land freight, passengers, or other persons. 3015. Duties of pilots. Sec 3015. Every pilot who conducts into the port of San Francisco any vessel subject to quarantine or examination by the health officer, must: 1. Bring the vessel no nearer the city than is allowed by law; 2. Prevent any person from leaving and any communication being made with the vessel under his charge until the health officer has boarded her and given the necessary orders and directions; 3. Be vigilant in preventing any violation of the quarantine laws, and report without delay all such violations that come to his knowledge to the health officer; 4. Present the master of the vessel with a printed copy of the quarantine laws, unless he has one; 5. If the vessel is subject to quarantine by reason of infection, place at the mast-head a small yellow flag. 373 3016-3021 POLITICAL CODE. 3016. Penaltyfor neglect of masters of vessels to comply lolih sanitary regulations. Sec. 3016. Every master of a vessel, subject to quarantine or visitation by tbe health officer, arriving in the jiort of San Francisco, who refuses or neglects either : 1. To proceed uith and anchor his vessel at the place assigned for quaran- tine, when legally directed so to do; or, 2. To submit his vessel, cargo, and passengers to the health officer, and furnish all necessary information to enable that officer to determine what quar- antine or other regulations they ought, respectively, to be subject; or, 3. To report all cases of disease, and of deaths occurring on his vessel, and to comply with all the sanitaiy regulations of the bay and harbor; — Is liable in the sum of five hundred dollars for every such neglect or refusal. 3017. Vessels from infected ports, etc., subject to quarantine. Sec. 3017. All vessels arriving off the port of San Francisco from ports Avhich have been legally declared infected ports, and all vessels arriving from ports where there is prevailing, at the time of their departure, any contagious, infec- tious, or pestilential diseases, or vessels with decaying cargoes, or which have unusually foul or offensive holds, are subject to quarantine, and must be by the master, owner, pilot, or consignee reported to the health officer without delay. No such vessel must cross a right line drawn from Meiggs Avharf to Alcatraz island until the health officer has boarded her and given the order required by law. 3018. Examination and inspection of vessels by health officer. Sec 3018. The health officer must board every vessel subject to quarantine or visitation by him, immediately on her arrival, make such examination and inspection of vessel, books, papers, or cargo, or of persons on board, under oath, as' he may judge expedient, and determine whether the vessel should be ordered to quarantine, and if so, the period of quarantine. 3019. Passengers not to be landed without permit. Sec 3019. No captain or other officer in command of any passenger-carrying vessel of more than one hundred and fifty tons burden, nor of any vessel of more than one* hundred and fifty tons burden having passengers on board, nor any owner, consignee, agent, or other person having charge of such vessel or vessels, must, under a penalty of not less than one hundred dollars nor more than one thousand dollars, laud, or permit to be landed, any passenger from the vessel until he has presented his bill of health to the health officer, and received a permit from that officer to land such passenger, except in such cases as tlie health officer deems it safe to give the j^ermit before seeing the bill of health. 3020. Fees of health officer. Skc 3020. The following fees may be collected by the health officer: For giving a pennit to land freight or passengers, or both, from any vessel of less than one thousand tons burden, from any port out of this state, two and a half dollars; from any port in this state, one dollar and a quarter; from any passen- ger-cariying vessel of more than one thousand tons burden, three dollars and seventy-five cents; for vessels of more than one thousand tons burden, carrying no passengers, two dollars and fifty cents; for vaccination, from each person, one dollar. 3021. Compulsory vaccination. Sec 30"21. The board of health may enforce comi:)ulsory vaccination on pas- sengers in infected ships or coming from infected ports. 374 GENEEAL POLICE OF STATE. 3022-3031 3022. Hofipilals to be j:>rovided. Sec. 3022. The board of health may provide suitable hospitnls, to he situated at or near Saucelito, and furnish and supply the same with nurses and attaches, and remove thereto all persons afflicted with cholera, smallpox, yellow, typhus, or ship fever. 3023. Records of births, deatlis, and interments to be kept. Sec. 3023. The health officer must keep a record of all births, deaths, and interments occurring in the city and county of San Francisco. Such records, when filled, must be deposited in the office of the county recorder, and pro- duced when required for public inspection. 3024. Returns of birUus, deaths, and nvmber of stillborn children. Sec. 3024. Physicians and midwives must, on or before the fourth day of each month, make a return to the health officer of all births, deaths, and the number of stillborn children occurring in their practice during the preceding month. In the absence of such attendants, the parent must make such report within thirty days after the birth of the child. Such returns must be made in accordance with rules adopted and upon blanks furnished by the board of health. 3025. No bodies to>be interred without permit. Sec. 3025. No person must inter in the city and county of San Francisco any human body without having first obtained a physician's or coroner's certificate, setting forth as near as possible the name, age, color, sex, place of birth, date, locality, and cause of death of the deceased; and physicians, when deaths occur in their practice, must give such certificates. 3026. Return of interments to be made to health officer. Sec. 3026. Superintendents of cemeteries within the boundaries of the city and county of San Francisco must return to the health officer on each Monday the names of all persons interred within their respective cemeteries for the pre- ceding week, together with the certificates mentioned in the preceding section. 3027. Bodies not to be removed without permit. Sec. 3027. No superintendent of a cemetery can remove, or cause to be re- moved, disinter, or cause to be disinterred, any corpse that has been deposited in the cemetery, without a permit from the health officer, or by order of the coroner. 3028. Nuisances on premises of non-residents, how abated. Sec. 3028. Whenever a nuisance exists on property of any non-resident of the city and county, the board of supervisors may, on the recommendation of the board of health, cause the nuisance to be abated, and may allow and order paid out of the general fund all proper charges and expenses incurred in abat- ing such nuisance; and all sums so allowed and j^aid become a charge upon the property on which the nuisance existed, and may be recovered by an action against such property. 3029. Health officer to keep fee book. Sec. 3029. The health officer must keep in his office a book in which he must make an entry of all fees collected by him. He must pay all fees collected to the city and county treasurer weekly, to the credit of the general fund. 3030. Bond of health officer. Sec. 3030. The health officer must execute an official bond, to be approved by the board of health, in the sum of ten thousand dollars. 3031. Health officer maij administer oaths. Sec. 3031. Any member of the board of health, deputy health officer, or sec- 375 3031-3032 POLITICAL CODE. retary of the health deijartmeut, is empowered to administer oaths on business connected with that depaiiment. 8032. Actions, in ichose name maintained. Sec. 3032. Whenever any cause of action arises under any of the provisions of this chapter, suit may be maintained therein, in the name of the health officer, in an}- district court of this state. An Act to establish a quannitiue for the bay and harbor of Sau Francisco, and sanitary laws for the city and county of Sau Fraucisco. Approved April 4, 1870; 1869-70, 716. Quarantine gi'ounds at Saucelifo. Section 1. The quarantine grounds of the bay and harbor of San Francisco shall be at the anchorage of Saucelito. Board of heallJi. Sec 2. There shall be a board of health in and for the city and county of Sau Francisco, which board shall consist of the mayor of the city and county, and four physicians in good standing, residing- in the city and county of San Fran- cisco, who shall be appointed by the governor; and they shall determine by lot, one shall hold for one year, one for two years, one for three years, one for four years; and their successors shall be appointed, as herein provided, for the term of live years each. Ileetings. Sec. 3. The mayor of the city and county of San Francisco shall be ex officio president of the board of health; they shall meet monthly and at such other times as the president may call them together for the transaction of business. In the absence of the president the board shall elect a chairman, who shall be clothed with the same powers as the president. Health officer. Sec. 4. There shall be a health officer for the city and county and port of San Francisco; he shall be elected bj^ the board of health, and shall continue in office diu'ing its pleasure. He shall be a graduate of some medical college in good standing, and shall reside within the city limits of Sau Francisco. Powers of health officer. Sec. 5. The health officer shall have power to perform all acts which quaran- tine officers are usually authorized to perform, and shall be the executive officer of the boad'd of health. Officers. Sec G. The board of liealth shall appoint a dejDuty health officer, who shall be a physician in good standing, a secretar}^ two health inspectors, one market inspector and one messenger, whose duties shall be defined by the health officer. Salaries. Sec 7. The following rates of compensation shall be allowed to the officers of the health department: Health officer, twenty-four hundred dollars jier annum; deputy health officer, eighteen hundred dollars per annum; secretary, two thousand one liundred dollars per annum; two health insjoectors, one thou- sand two hundred dollars per annum each; one market insi)ector, one thousand two hundred dollars per annum, and one messenger, nine hundred dollars per annum. All the salaries provided to be jmid under the provisions of this act, shall be paid monthly, in equal installments, out of the general fund of said city and county, in the same manner as the salaries of the other officers of said city and county are paid; and it shall be the duty of the auditor of said city and county to allow, and of the treasurer to pay, said salaiies in the manner herein provided. 37G GENEEAL POLICE OF STATE. 3032 Expeyises. Sec. 8. The health officer, in addition to his salary, shall receive such sums for the necessary expenses of his office as the board of health may direct, and the auditor is hereby directed to audit, and the treasurer to pay, such sums out of the general fund, and the board of supervisors shall provide proper offices for the health department. Poivers of board of health. Sec. 9. The board of health shall have general supervision of all matters ai)pertainiug to the sanitary condition of said city and county, including the city and county hospital, the county jail, almshouse, industrial school, and all public health institutions provided by the city and county of San Francisco; and full powers are hereby given to said board to adopt such orders and regu- lations, and appoint or discharge such medical attendants and employees as to them seems best to promote the public welfare, and not in contravention of any law, and they may appoint as many health inspectors as they may deem neces- sary in time of epidemic. Infected vessels to report. Sec. 10. It shall be the duty of shipmasters bringing vessels into the harbor of San Francisco, and of masters, owners or consignees having vessels in said harbor, which have on board any cases of smallpox, yellow fever or Asiatic cholera, typhus or ship fever, to immediately rejDort the same in writing to the health officer before landing any passengers, casting anchor, or coming to any wharf, or as soon thereafter as they or either of them shall become aware of the existence of either of these diseases on board of said vessel. Landing passengers. Sec. 11. No captain or other officer in command of any vessel sailing under a register, arriving at this port, nor any owner, consignee, agent or other person having charge of such vessel or vessels, shall, under a penalty of not less than one hundred dollars, nor more than one thousand dollars, land or permit to be landed, any freight, passengers or other persons from said vessel or vessels, till he shall hav& reported to the health officer, presented his bill of health and received a permit from said officer to land said freight, passengers or other persons. Duty of pilots. Sec. 12. It shall be the duty of every pilot who shall conduct into the port of San Francisco any vessel subject to quarantine, or to examination by the health officer : 1. To bring said vessel no nearer the town than is allowed by section fourteen of this act; 2. To prevent any person from leaving, and any communication being made with the vessel under his charge, till the health officer shall have boarded her, and shall have given the necessary orders and directions; 3. To be vigilant in preventing any violation of the quarantine laws, and to report without delay all such violations that come to his knowledge to the health officer; 4. To present the master of the vessel with a printed copy of the quarantine laws, unless he have one already; and, in the event of being subject to quaran- tine, by reason of infection, to j)lace at the mast-head a small 3-ellow flag. Refusal to comply xoith sanitary regulations. Sec. 13. Every master of a vessel subject to quarantine or visitation by the health officer, arriving in the port of San Francisco, who shall refuse or neglect either: 377 3032 POLITICAL CODE. 1. To proceed with and anchor bis vessel at the place assigned for quaran- tine, -wlien legally directed so to do; or, 2. To submit his vessel, cargo and jDassengers to the health officer, and to furnish all necessary information to enable that officer to determine to what length of quarantine and other regulations they ought respectively to be subject; or neglect to report all cases of disease mentioned in this act, and all cases of death occurring on his vessel, and to comply with all the sanitary reg- ulations of said bay and harbor, shall be deemed guilty of a misdemeanor, and on.' conviction thereof, shall be punished as provided for in section eleven of this act. Vessels arriving from infected ports. Sec. 1-4. All vessels arriving off the port of San Francisco, from ports which have been legally declared infected ports, and all vessels arriving from ports where there shall be j)revailing, at the time of their dejjarture, any contagious, infectious or pestilential diseases (especially smallpox, Asiatic cholera, typhus or ship fever), or vessels with decaying cargoes, or which have unusually foul or offensive holds, shall be subject to quarantine; and it shall be the duty of the master, owner, pilot or consignee, to rejDort any and all such vessel or vessels to the health officer Avithout delay. No such vessel shall cross a right line drawn from Meiggs wharf to Alcatraz island, till the health officer shall have boarded her, and given the order required by law. Inspection of vessels. Sec. 15. It shall be the duty of the health officer to board every vessel subject to quarantine or visitation by him, immediately on her arrival (or as soon as he shall be notified thereof), between sunrise and sunset, to make such examination and ins2:)ection of vessel, books, papers or cargo, or of persons on board, under oath, as he may judge expedient, to determine whether said vessel should be ordered to quarantine, and if so, the period of quarantine. Landing passengers without permit. Sec. 1G. No captain or other officer in command of any passenger-cai'rying vessel of more than one hundred and fifty tons burden, nor of any vessel more than one hundred and fifty tons burden having passengers on board, nor any owner, consignee, agent or other person having charge of such vessel or ves- sels, shall, under a penalty of not less thano2ie hundred dollars, nor more than one thousand dollars, land or permit to be landed any passenger or passengers from said vessel or vessels, until he shall have presented his bill of health to the health officer, and received a permit from that officer to land said passenger or passengers, except in such cases as the health officer shall deem it safe to give the permit before seeing the bill of health. Fees. Sec. 17. The following fees shall be collected by the health officer: For giv- ing a permit to land freight or passengers, or both, from any vessel of less than one thousand tons burden, from any port out of this state, two and a half dol- lars; from any port in this state, one dollar and aquai'ter; from any passenger- carrying vessel of more than one thousand tons bui'den, three dollars and seventy-five cents; from vessels of more than one thousand tons burden, carry- ing no passengers, two dollars and fifty cents; provided that vessels carrying less than twenty passengers shall in no case pay more than two dollars and a half; but this shall not apply to sailing vessels sailing to and from an}' port of the Pacific states of the United States or territories, or to whaling vessels en- tering the harbor of San Francisco, excepting that they shall report to the health officer, as provided for in section ten of this act. 378 GENERAL POLICE OF STATE. 3032 Vaccmaiion. Sec. 18. The health officer or his deputy shall board any vessels bringing passengers from Asiatic ports and coming into the harbor of San Francisco, and then and there, in his discretion, vaccinate each and every one of said pas- sengers before they shall be permitted to land in the city and county of San Francisco. Re-vaccination. Sec. 19. In case there shall be any person on board the vessels mentioned in section ten, v^ho shall actually be sick with the smallpox, the health officer is hereby authorized to require each and every person on board said vessel to be re-vaccinated, if he or she has been previously vaccinated, or to be then and there vaccinated for the first time. blaster of vessel to aid health officer. Sec. 20. It shall be the duty of each and every master, or other officer having command of such vessel, to aid the health officer in performing the duties herein required, by anchoring the vessel in the bay, and by all other suitable and reasonable means, until said vaccination shall have been completed; and any master, or other officer in command of such vessel, who shall neglect or refuse to render such assistance in carrying out the provisions of this section, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by a fine not less than one hundred dollars, nor more than five hundred dollars. Fee for vaccination. Sec. 21. The fees of the health officer for vaccinating such passengers shall be one dollar for each and every person so vaccinated; and all persons refusing to be vaccinated, or to pay fee therefor, shall be detained at quarantine on board said vessel until they are vaccinated and pay the fee therefor, and he is hereby authorized to collect the said fee from the person or persons vaccinated. Hospitals. Sec. 22. The board of health shall have the power, under the provisions of this act, to provide suitable hospitals, to be situated at or near Saucelito, and furnish and supi:)ly the same with suitable nurses and attaches, as in their judg- ment the jjublic health may require, and to remove thereto all persons afflicted with cholera, yellow fever, typhus or ship fever. Record of births, deaths, etc. Sec. 23. It shall be the duty of the health officer to keep a record of all births, deaths, and interments in the city and county of San Francisco, in books duly prepared for that purpose. Said records, when filled, shall be deposited in the office of the county recorder, and produced when required for public insj^ec- tion. Interment without certificate. Sec. 24. Every sexton, undertaker, superintendent of a cemetery, or other person, who shall inter, or cause to be interred, any human body, without having first obtained and filed with the health officer a physician's certificate, or the coroner's certificate, setting forth, as nearly as possible, the name, age, color, sex, and date and place of birth, date and locality of death, and cause of death of the deceased, shall be deemed guilty of misdemeanor, and on convic- tion shall be punished as provided in section tw^enty-nine of this act. Physician's certificate. Sec. 25. It shall be the duty of the physicians, when deaths occur in their practice, to give a certificate to that efi"ect, with the name, age, color, nativity, date of death, place of death, and occupation of deceased. For this purpose, blank cei-tificates shall be kept at the health office. 379 3032 POLITICAL CODE. Notice ofhirth to he given. Sec. 26. It shall be the duty of the parent or parents, or, in the case of their death, then of the next of kin in attendance, or, if there be no relative in attend- ance, then of the person having charge or control of any child born witbin the limits of the city and county of San Francisco, to report the same to the health officer within ten days of its birth, giving name (if named), date of birth, sex, color; name, birthi)lace, and occupation of father; maiden name and birthplace of mother; and place of birth. Blanks for this purpose shall be kept at the health office. All persons failing to comj)ly with the provisions of this section shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by fine of not less than five dollars nor more than fift}^ dollars. [Amendmcnf, approved March IG, 187G; 1875-G, 305; took effect from passage. Returns of permits for interments. Sec. 27. Superintendents of cemeteries within the boundaries of the city and county of San Francisco, shall make returns to the health officer on each Monday of all permits for interment received by them during the preceding week. Rem,oval of bodies. Sec. 28. No superintendent of any cemetery shall remove, or cause to be removed, disinter, or cause to be disinterred, any corj)se that shall have been' deposited in said cemeters', without a permit from the health officer, or by order of the coroner. Violations of this act. Sec 29. Any person who shall neglect or refuse to comply with any of the provisions of this act shall be deemed guilty of misdemeanor, and on conviction thereof shall be punished by a fine of not less than one hundred dollars nor more than one thousand dollars, or by imiirisonment in the county jail not exceeding twelve months, or by both fine and imprisonment. Removal of nuisances. Sec. 30. Whenever a nuisance shall exist on the property of any non-resident, or any property the owner or owners of which cannot be found by either health inspector, after diligent search, it shall be the duty of the board of health to cause the said nuisance to be at once removed, and to draw upon the general fund for such sums as may be required for its removal, not to exceed two hun- dred dollars; provided, that whenever a larger expenditure is found necessarj' to be made for the removal or sujipression of an}^ nuisance, the board of super- visors of said city and county may, upon the written application of the board of liealth, by ordinance, appropriate, allow, and order paid out of the general fund such sum or sums as may be necessary for that purpose; provided further, that in all cases where such expenditure will exceed five hundi-ed dollars, no appropriation shall be made for that purpose, unless the city and county attor- ney shall first give his opinion, in writing, that such ex2:)enditure would be a legal charge against the proj^erty affected thereby. The auditor shall audit and the treasurer shall pay all appropriations of money made in pursuance of this section, in the same manner as is now i)rovided by law for auditing and paying demands upon the treasury. [Amendineiii, approved March IG, 1876; 1875-G, 305; took effect from passage. Jurisdiction. Sec. 31. The police judge's court of the city and county of San Francisco shall have full and complete jurisdiction of all actions and proceedings for the violation of the provisions of this act. 880 GENERAL POLICE OF STATE. 3032 Fee hook. Sec. 32, It shall be the duty of the health officer to have kept in his office a book in which shall be entered all fees collected by him; and he shall cause the same to be paid over to the city and county treasurer weekly, under oath, to the credit of the general fund. Bond. Sec. 33. The health officer, before entering on his duties, shall give bonds with good and sufficient security, to be approved by the board of health, in the sum of ten thousand dollars for the faithful performance of his duties. Oaths. Sec 34. Any member of the board of health, dej^uty health officer, or secre- tary of the health dej^artment shall be empowered to administer oaths on busi- ness connected with that department. Sec. 35. All acts or parts of acts in conflict with this act or any of its provis- -ions, are hereby repealed. Sec 36. This act shall take effect immediately after its passage. An Act ameudatory of aud supplementaiy to the foregoing act of April 4, 1870. Approved March 16, 1876; 1875-6, 305. Quarantine officer and Ms bond. Section 1. From and after the passage of this act the deputj^ health officer of the city and county of San Francisco shall be known as the quarantine officer. He shall have power to perform all acts which he has heretofore performed under the title of dejDuty health officer, and all acts which quarantine officers are usually authorized to i^erform. He shall give bonds, with good and sufficient security, to be ajoproved by the board of health, in the sum of five thousand dollars. Health inspectors, salaries of. Sec 2. There shall be four health inspectors for the city and county of San Francisco, who shall be appointed b}' the board of health, and shall receive twelve hundred dollars per annum each, to be paid in the same manner as is provided for the payment of the salaries of the other appointees of the board of health. [Sec 3 contained the amendment to section 30 of the foregoing act, therein inserted.] Transportation of deceased persons. Sec 4. No person, master, captain, or conductor, in cliarge of any boat, ves- sel, railroad car, or public or private conveyance, shall receive for transportation, or shall transport the body of any person who has died within the limits of the city and county of San Francisco, without obtaining a permit for the same from the health officer, which permit must accompany the body to its destina- tion; and no person, master, captain, or conductor, as aforesaid, shall bring into or transport through the said city and county the dead body of any per- son, unless it be accompanied with a certificate from some proper authority of the place whence it came, stating name, age, sex, and cause of death, which certificate shall be filed at the health office; provided, that in no case shall the body of any person who died of a contagious disease be brought to the city within one year of the day of death, [Sec 5 contained the amendment to section 26 of the foregoing act, therein inserted,] Sec 6. All acts and parts of acts in conflict with the provisions of this act are hereby repealed. Sec 7. This act shall take effect from and after its passage. 381 3042-3049 POLITICAL CODE. ARTICLE IV. HEALTH EEGULATIONS FOB THE CITY OF SACRAMEMTO. 3042. Board of health, xclin and hoxo appointed. Sec. 3042. The board of trustees of tlie city of Sacramento may establish by ordinance a board of health therefor, to consist of five practicing physi- cians, graduates of a medical college of recognized respectability; and the presi- dent of the board of trustees is ex officio president of the board. 3043. Term and vacancies. Sec. 3043. The members of the board hold their offices at the joleasure of the appointing power. 3044. Poioers of the board of health. Sec. 3044. The board of health of the city of Sacramento has a general su- pervision of all the matters appertaining to the sanitary condition of the city, and may make such rules and regulations in relation thereto as are not incon- sistent with law. 3045. Pcd houses, how located and conducted. Sec 3045. The board of health may locate and establish pest houses, and cause to be removed thereto and kept any person having a contagious or infec- tious disease; may discontinue or remove the same, and make such rules and regulations regarding the conduct of the same as are needful. 3046. Death records. Sec. 304G. The board of health must exercise a general supervision over the death records of the city of Sacramento, and may adopt such forms and regu- lations for the use and government of physicians, undertakers, and sujDerintend- ents of cemeteries as in their judgment may be best calculated to secure relia- ble statistics of the mortality in the city and prevent the spread of disease. 3047. Enforcement of regulations. Sec. 3047. The board of trustees of the city of Sacramento must, by ordi- nance or otherwise, provide for enforcing such orders and regulations as the board of health may from time to time adopt; and in times of epidemics, or when deemed necessarj' by the board of health, a health officer must be em- ployed to enforce the laws in relation to the sanitary condition of the city. 3048. Expenses, how paid. Sec 3048. All expenses necessarily incurred in carrying out the provisions of this article must be jDrovided for by the board of trustees of the city of Sacra- mento, who may make appropriation therefor out of the special street fund, if the same is sufficient; if not, they may by taxation provide a fund therefor. 3049. Compensation, how fixed. Sec 3049. The board of trustees must fix the compensation of the board of health and the health officer. An Act to establish aud maintain a dispensary in the city of Sacramento. Approved, March 23, 1872 ; 1871-2, 531. Establishment of dispensary. Section 1. The board of health of the city of Sacramento, consisting of Ira E. Oatman, T. M, Logan, F. W. Hatch, W. R. Cluness, and G. L. Simmons, are hereby empowered and required to establish a dispensary for the accommo- dation of the sick poor of the city and county of Sacramento, on the lot belong- ing to the county of Sacramento, on the northwest corner of Seventh and I streets, in said city; and all bills approved by said boai-d of health for tliis purpose shall be allowed and ordered paid, by the board of supervisors of the county of Sacramento, out of the general fund; provided, that all expense for 382 GENERAL POLICE OF STATE. 3249-3060 the establishment of such dispensary and furnishing of the same shall not ex- ceed two thousand dollars. Physician. Sec. 2. The board of supervisors of the county of Sacramento shall require the county physician, or a regularly educated assistant, to take charge of said dispensary, and to keep an office ojjen therein for at least two hours in each day of the year, at which time he shall give advice and medicines to poor out-pa- tients and applicants from the Howard benevolent society, and receive orders for visits to the sick poor at their homes, and said assistant shall receive a com- pensation not to exceed fifty dollars per month. Regulations. Sec. 3. During the absence of the medical attendant the dispensary shall be accessible, at all times of the day or night, to any member of the police of the city of Sacramento, to any practicing physician, or to any officer of the How- ard benevolent "society who may desire to obtain accommodations for patients in cases of accident or sudden sickness, where an immediate removal to the county hosjDital is impracticable, or where such an attempt would endanger life. Prohibition. Sec 4. No person possessed of property of any description shall receive as- sistance, as an out-patient, from the dispensary, and no cases of venereal dis- ease in any form shall be treated at the expense of the county in this institution. Control and management. Sec. 5. After the establishment of the dispensary by the board of health of the city of Sacramento the said board shall exercise a general supervision over its concerns, adopting such improvements in its management as from time to time may be required. They shall require from the attending physician stated reports in regard to cases treated by him, and certify to the board of supervi- sors of the county as to the correctness of all bills for medicines or incidental expenses; provided, that in no case shall any bills for medicines and incidental expenses be allowed which exceed in the aggregate the sum of one hundred dol- lars per month. No compensation shall be allowed to any member of the board of health for services rendered in carrying out the purposes of this act. Payment of expenses. Sec. 6. The board of supervisors of Sacramento county are hereby required to allow and order paid out of the hospital fund all bills for the maintenance of this dispensary which may be approved by the board of health of the city of Sacramento, in compliance with the jDrecediug sections. Sec 7. This act shall take effect and be in force from and aft^r its passage. ARTICLE V. HEALTH AND QUARANTINE OF OTHEE CITIES, TOWNS, AND HARBORS. 3059. Boai'ds of supervisors may adopt Ai^ticle III. Sec. 3059. The board of supervisors of any county in which there is a poi-t of entry or harbor, for which there is not otherwise provided health and quaran- tine regulations, may by an ordinance adopt the whole or any part of the provisions of Article III of this chapter, appoint a board of health, or health officer, locate quarantine grounds when necessary, and provide for the enforce- ment of health and quarantine regulations. 3060. Boards of supervisors may adopt Article IV. Sec 3060. In like manner the board of supervisors of any county in which there is an unincorporated city or town, for which there is not otherwise pro- 383 3060-3078 POLITICAL CODE. Tided a board of liealtli or health regulations in time of epidemics, or the existence of contagious or infectious diseases, may by an ordinance adopt for such city or town, in whole or in part, the provisions of Article IV of this chapter for some definite period of time; and appoint therefor a board of health. 8061. Incorporated cities or townn may adopt Articles III and IV. Sec. 30G1. The trustees, council, or other corresponding board of any incor- porated town or city in this state, may by ordinance adopt the whole or any part of Articles III and IV of this chapter, or of either of them, as provided in tlie preceding section for the boards of supervisors. 3062. Jlaij appmint health officer in lieu of board. Skc. 30G2. In the place of appointing a board of health, the board of super- visors or the city or toAvn authorities may appoint a health officer, with all the duties and powers of the board of health and health officer, as specified in the two 2>receding articles. 3063. Fer capita or property tax, hoiv levied. Skc. 30G3. All necessaiy expenses of enforcing this article are charges against the counties, cities, or towns resj^ectively, for the jDayment of which the county, city, or town may levy a per capita tax of not exceeding three dollars, or a property tax of not exceeding one fourth of one per cent, yearly until the same is paid. CHAPTEK III. REGISTRY OF BIRTHS, MARRIAGES, AND DEATHS. 3074. Begistry of marriages. Sec. 3074. All persons who perform the marriage ceremony must keep a regis- try of the time of each marriage so celebrated, the residence, the names in full, the place of birth, the age and condition of each party, and whether either i^arty has ever been before married; if so, to whom and whether the person with whom such former mamage was contracted is living or dead. 3075. Begistry of births. Sec. 3075. All physicians and professional midwives must keep a registry of the time of each birth at which they assist professionally, the sex, race, and color of the child, and the names and residence of the parents. 3076. Begistry of death. Sec. 3076. Physicians, who attend deceased persons in their last sickness; clergymen, who officiate at a funeral; coroners, who hold inquests; sextons and undertakers, who bury deceased persons; must each keep a register of the name, age, residence, and time of death of such person. [Aniendmeyit, approved March 30, 1874; Amendmerds 1873-4, 42; took effect July 6, 1874.^'" 3077. Beports to recorder. Sec 3077. All persons registering births or deaths must quarterly file with the county recorder a certified copy of their register. All such certificates must specify as near as may be ascertained the name in full, age, occui:)ation, term of residence in the city or county, birtlipLu-e, condition, whether single or married, widow or widower, race, color, last place of residence, and cause of death of all decedents. 3078. Saine. Six-. 3078. If at any birth no physician or midwife attends, the parents must make the report. (a) The original section had the words "have at- Instead of " ofHoiate," and " sextons who have burled " tended " Instead of " attend/' also " have officiated " instead of " sextons and undertakers who bury." 384 GENERAL POLICE OF STATE. 3079-3094 3079. Duties of recorder. Sec. 3079. The recorder must keep separate registers, to be known as tlie " Register of Births" and the "Register of Deaths," in which the births and deaths certified to him must be numbered in the order in which they are reported to him. There must be stated in each register, in separate cohnnns, properly headed, the various facts contained in the certificates, and the name and ofiicial or clerical position of the person making the report. The recorder must care- fully examine each report and register the same birth or death but once, although it may be reported by diflereut persons. 3080. Report to secretary of state board of health. Sec. 3080. The county I'ecorder must every thi'ee months transmit to the sec- retary of state board of health, at Sacramento cit}', a certified abstract of the registers of births, marriages, and deaths, prepared in the manner prescribed in the instructions of the secretary and upon blanks to be furnished by him for that purjDOse. 3081. Fees. Sec. 8081. The persons reporting births and deaths to the recorder must pay to him a fee of twenty-five cents for the registration of each name, which must be primarily paid by the parents or other next of kin to the person whose birth or death is reported. In case no fee is paid to the person reporting a birth or death to the recorder by the j^arents or next of kin of the joerson reported, the same must nevertheless be reported and registered, and the board of super- visors must pay from the general fund of the county to the recorder a fee not exceeding twent^'-five cents for each name reported. 3082. Penalties. Sec. 3082. Any person on whom a duty is imposed by this chapter who fails, neglects, or refuses to perform the same as herein required, is liable to a penalty of fifty dollars, to be recovered by the district attorney of the proj)er county for the use of the general fund of such county. CHAPTER IV. DISSECTION. 3083. Physicians, etc. , may obtain dead bodies. Sec. 3093. Any physician or surgeon of this state, or any medical student under the authority of any such physician or surgeon, may obtain, as herein- after provided, and have in his possession human dead bodies, or the parts thereof, for the purposes of anatomical inquiry or instruction. 3094. Sheriffs, etc., to give dead bodies to physicians in certain cases. Sec. 3094. Any sheriff, coroner, keeper of a county poorhouse, public hos- pital, county Jail, or state prison, or the mayor or board of supervisors of the city of San Francisco, must surrender the dead bodies of such persons as are required to be buried at the public expense to -any physician or surgeon, to be by him used for the advancement of anatomical science, preference being always given to medical schools by law established in this state, for their use in the instruction of medical students. But if such deceased person during his last sickness requested to be buried, or if within twenty-four hours after his death some person claiming to be of kindred or a friend of the deceased requires the body to be buried, or if such deceased person was a stranger or traveler who suddenly died before making himself known, such dead body must be bmied without dissection. 25 385 3095-3110 POLITICAL CODE. 3095. Physicians, etc., io have certificate from medical society, and to give bond before receiving dead bodies. Sec. 3095. Eveiy phvsiciau or surgeon, before receiving a dead body, must give to the board or oflScer surrendering the same to him a certificate from the medical society of the county in which he resides, or if there is none, from the board of supervisors of the same, that he is a fit person to receive such dead body. He must also give a bond, with two sureties, that each body so by him received will be used only for the promotion of anatomical science, and that it will be used for such j)urpose within this state only, and so as in no event to outrage the public feeling. CHAPTER V. CEMETERIES AND SEPULTUEE. 3105. Title io cemetery grounds. Sec. 3105. The title to lands used as a public cemetery or graveyard, situated in or near to any city, town, or village, and used by the inhabitants thereof continuously, without interruption, as a burial ground for five years, is vested in the inhabitants of such city, town, or village, and the lands must not be used for any other purpose than a public cemetery. 3106. What constitutes a cemetery. Sec. 3106. Six or more human bodies being buried at one place constitutes the place a cemetery. 3107. Cemeteries, how laid out and dedicated on public lands. Sec 3107. Incorporated cities or towns, and for unincorpoi'ated towns or villages, the supervisors of the county, may survey, lay out, and dedicate of the public lands situated in or near such city, town, or village, not exceeding five acres, for cemetery and burial purposes. The survey and description thereof, together with a certified cop}' of the order made constituting the same a ceme- tery, must be recorded in the recorder's office of the county in Vvhich the same is located. 3108. Inhabitants of city, toivn, or village to own cemetery. Sec 3108. The inhabitants of any city, town, village, or neighborhood may, by subscrijition or otherwise, purchase or receive by gift or donation, lands not exceeding five acres, to be used as a cemetery, the title thereof to be vested in such inhabitants, and when once dedicated to use for buiial purposes must thereafter be used for no other purpose. 3109. Public cemeteries, under whose control. Sec 3109. The public cemeteries of cities, towns, villages, or neighborhoods must be inclosed and laid oflf into lots, and the general management, conduct, and regulation of interments, permits to inter, or remove interred bodies, the disp(jsition of lots and keeping the same in order, is under the jurisdiction and contro] of the cities and towns owning the same, if incorporated; if not, then under the jurisdiction and control of the board of supervisors of the county in wliicli they are situated. 3110. Who exercises jurisdiction and control over. Sec 3110. The boards of supervisors, city trustees, or other corresponding authorities having jurisdiction and control of cemeteries, may make general rules and regtdations therefor, and appoint sextons or other officers to enforce obedience to the same, with such other powers and duties regarding the cem- etery as they may deem necessary. ^ 386 GENERAL POLICE OF STATE. 3111-3139 3111. Register mud he kept. Sec. 3111. The authority having control of a public cemetery must require a register of name, age, birthplace, and date of death and burial of ever}' body interred therein, to be kept by the sexton or other officer, open to i^ublic inspection. CHAPTER VI. LOST AND UNCLAIMED PROPERTY. Article I. Lost Monet and Goods 313G II. Unclaimed Pbopertt 3152 ARTICLE I. LOST MONEY AND GOODS. 3136 Duty of 2')ersons finding lost money, goods, etc. Sec. 3136. If any person find any money, goods, things in action, or other personal property, or shall save any domestic animal from drowning or from starvation, when such j)roperty shall be of the value of ten dollars or more, he must inform the owner thereof, if known, and make restitution without com- jDensation, further than a reasonable charge for saving and taking care thereof; but if the owner is not known to the party saving or finding such property, he must, within five days, make an affidavit before some justice of the peace of the county, stating when and where he found or saved such propei-ty, particularly describing it; and if the property was saved, particularly stating from what and how he saved the same, stating therein whether the owner of the property is known to him, and that he has not secreted, withheld or disposed of any part of such property. [Amendment, approved March 30, 1874; Amendments 1873-4, 42; took effect July 6, 1874.''" 3137. Justice to appoint appraisers — Duty of appraisers. Sec. 3137. The justice must then summon three disinterested householders to appraise the same. The appraisers, or anj' two of them, must make two lists of the valuation and description of such property, and sign and make oath to the same, and deliver one of the lists to the finder, and the other to the justice of the iDcace. 3138. Justice to file list of appraisers. Sec. 3138. The justice must file such list, and the finder must transmit a copy of the same to the recorder of the county, who must record the same in a book known as the "Estray and Lost Property Book," within fifteen da^'s, and the finder must at once set up at the court-house door and four other public places in the township or city a copy of such valuation and description of property. 3139. Proceedings, if no oivner appear within six months. Sec. 3139. If no owner appears and proves the proj^erty within six months, and the value thereof does not exceed twent}' dollars, the same vests in the finder; but if the value exceed twenty dollars, the finder must, within thirty days after setting up the list mentioned in the preceding section, cause a copy of the description to be inserted in some newspaper printed in the county, if there be one, and if not, in some newspaper piinted in the state, for three (a) Original section: care thereof; but if the owner is not known, he must, Stc. 3iat5. If any person find any money, goods, within five days, make an affidavit before some justice things in action, or other personal property of the of the county, stating when and where he found the value of ten dollars or more, he must inform the owner same, particularly describing it, that the owner is un- thereof , if known , and make restitution without com- known to him, and that he has not secreted, withheld, pensation, further than a reasonable charge for taking or disposed of any part of such property. 387 3139-3155 POLITICAL CODE. weeks; and if no owner prove tlie property witliin one year after such publica- tion it vests in the finder. 3140. Finder to restore property, ichen. Sec. 3140. If, within one year, an owner appears and proves the property and pays all reasonable charges, including fees of officers, the finder must restore the same to him. On failure to make restoration of such property, or the ajipraised value thereof, on being tendered such charges and fees, the owner may recover the same or the value thereof by civil action in any court having jurisdiction. 3141. Finder failing to make discovery, penalty. Sec 3141. If auy person find any money, property, or other valuable thing, and fail to make discovery of the same as required by this article, he forfeits to the owner double the value thereof. 3142. Proof, hoio made. Sec. 3142. The proof rec^uired by this article must be made before the clerk with whom the list provided for herein is filed, and if he is satisfied therefrom that the person claiming to be is the owner, he must certify that fact under his hand and the seal of the county court. ARTICLE II. UNCLAIMED PROPERTY. 3152. Comvion carriers may retain goods until charges are paid. Sec 3152. When any goods, merchandise, or other property has been received by any railroad or express company, or other common carrier, commission mer- chants, innkeepers, or warehousemen, for transi:)ortation or safe keeping, and are nut delivered to the owner, consignee, or other authorized j^erson, the carrier, commission merchant, innkeeper, or warehouseman, may hold or store the same with some responsible person until the freight and all just and reasonable charges are paid. 3153. Property unclaimed ivithin sixty days to be sold, how. Sec 3153. If no joerson calls for the proj^erty within sixty days from the receipt thereof and pays freight and charges thereon, the carrier, commission merchant, innkeeper, or warehouseman may sell such property, or so much thereof, at auction to the highest bidder, as will pay freight and chai'ges, first having given twenty days' notice of the time and place of sale to the owner, consignee, or consignor, when known, and by advertisement in a daily pajier ten days (or if in a weekly paper, four weeks), published where such sale is to take place; and if any surplus is left after paying freight, storage, cost of adver- tising, and other reasonable charges, the same must be joaid over to the owner of such property- at any time thereafter, upon demand being made therefor within sixty days after the sale. 3154. Proceeds unclaimi'd , where to go. Sec 31.54. If the owner or his agent fails to demand such suii)lus within sixty days of the time of such sale, then it must be paid into the county treasury, subject to the order of the owner. 3155. Carrier's responsibility ceases, when. Sec 3155. After the storage of goods, merchandise, or property, as herein provided, the responsibility of the earner ceases, nor is the person with whom the same is stored liable for any loss or damage on account thereof, unless the same results from his negligence or want of proper care. 388 GENEEAL POLICE OF STATE. 315G-3171 3156. Property upon which advances are due may he sohl, lolien. Sec. 3156. Wlien any commission mcrcliant or warehouseman receives on consignment produce, merchandise, or other property, and makes advances thei'eon, either to the owner or for freight and charges, he may, if the same is not paid to him within sixty days from the date of such advances, cause the produce, merchandise, or propex'ty on which the advances were made, to be advertised and sold as provided herein. 3157. Fees of officers. Sec. 3157. The fees of officers \ander this chapter are the same allowed for similar services in other cases provided in this code, to be paid by the taker up or finder, and recovered of the owner. CHAPTER yil. MARKS AND BRANDS. Abticle I. Mabks and Brands 3107 II. Regulations relating to Marks and Brands 3182 III. Tbade-Maeks 3196 ARTICLE I. MARKS AND BRANDS. 3167. Owners of cattle to keep a mark, brand, and counterhrand. Sec. 3167. Owners of horses, mules, cattle, sheep, goats, or hogs running at large must have a mark, brand, and counterbrand different from any one in use by any other person, so far as may be known. 3168. To record brands. Sec. 3168. Every owner must record with the recorder of the county his mark, brand, and counterbrand by delivering to the recorder his mark, cut upon a piece of leather, and his brand and counterbrand burnt upon it, which shall be kej)t in the recorder's ofl&ce. A certified copy thereof made by the recorder, with the seal of his office attached thereto, is evidence on the trial of any action in a court of competent jurisdiction as to the ownership of all animals legally marked or branded. The recorder must enter in a book to be kept by him for that purpose a cox)y of the marks, brands, and counterbrands; but he must first be satisfied that such brand and counterbrand tendered to him for record is unlike any other mark, brand, or counterbrand in the county, and, as far as his knowledge extends, is different from any other in the state. For recording the mark, brand, and counterbrand the recorder is entitled to de- mand and receive one dollar. 3169. Recorders' duties respecting recorded marks, etc. Sec. 3169. Every recorder in this state must transmit to the recorders of the adjoining counties a transcript of all the marks, brands, and counterbrands recorded in his office, to be filed by such recorders in their offices, and reference thereto must be made in every case of application for the record of marks and brands. 3170. Marks and brands not laitful unless recorded. Sec. 3170. No mark, brand, or counterbrand is lawful unless recorded as provided in this article, nor shall any person use more than one mark or brand, unless he is the owner of more than one ranch or farm. 3171. CerHain mai'ks not allowed. Sec. 3171. No person must use a mark by cutting off the ear or by cutting the ear on both sides to a point. 389 3172-3196 POLITICAL CODE. 3172. Branding of animah. Sec. 3172. Every person must mark or brand Lis horses and mules before they are eight mouths old, and cattle befoi'e they are twelve months old, on the hip or hinder part, and mark or brand his slieej), goats, and hogs, before they are six months old. On the trial of unj action to recover the possession of any animal which is marked or branded, the mark or brand is prima facie evidence that the animal belongs to the owner of the mark or brand. When a dispute occurs in regard to a mark or brand, the person first recording the same is entitled thereto. [Amendment, approved March 30, 1871; Amendmenls 1873-4, 43; took- effect July 6, 1874.<''> ARTICLE II. REGULATIONS RELATING TO^MARKS AND BRANDS. 3182. Begnlaiions for selling catUe, etc. Sec. 3182. Persons selling cattle, horses, mules, jacks, or jennies, must coun- terbraud them on the shoulders, or give a written descriptive bill of sale. 3183. Penalty for using more than one mark or an unrecorded mark. Sec. 3183. Any person who uses any mark, brand, or counterbrand other than the one recorded by him, except by the consent of the owner of such other mark, brand, or counterbrand, or uses more than one mark, brand or counterbrand otherwise than is j)rovided in Article I, or suifers his ward, child, apprentice, or servant to use any other than his own mark, brand, or counter- brand on those of the stock they run with, forfeits to any person suing therefor the stock so marked or branded with any other than the proj^er mark or brand recorded by him. This section does not extend to any stock which may descend to any ward, child, apprentice, or servant by the gift or devise of any person other than the guardian, jDarent, or master of such ward, child, apprentice, or seiwant; but the marks, brands, and counter brands of such minors, apprentices, or servants must be recorded as other marks, brands, and counterbrands. 3184. Fraudulently rtiismarking cattle. Sec. 3184. If any person has knowledge of any person, who, with the intent to defraud or willingl}- mismarks or misbrands any stock not his own, or kills any stock running at lai'ge having a proper owner, the person having such knowledge must, within ten days thereafter, give information thereof to some justice of the peace of the proper county. 3185. Hides of slaughtered cattle to he kept. Sec. 3185. All persons slaughtering cattle must keep the hides, with the ears attached, for fifteen days; and all i:)ersons having such hides in their possession must exhibit the same for examination on demand being made by any person. ARTICLE III. TRADE-MARKS. 3196. " Trademarks" defined. Sec. 319G. The phrase "trade-mark" as used in this chapter includes eveiy description of word, letter, device, emblem, stamp, imprint, brand, printed ticket, label, or wrajiper usually affixed by any mechanic, manufacturer, druggist, merchant, or tradesman, to denote any goods to be goods imported, manufactured, i)roducfd, compounded, or sold by him, other than anj^ name, word, or expression generally denoting any goods to be of some particular class or description. (a) The original Bection Lad the word " primary " instead of " prima facie." 390 GENEEAL POLICE OF STATE. 3197-3212 3197. Person may secure exclusive use of trade-mark, hoiu. Sec. 3197, Auy person may secure the exelush^e use of any sucli trade-mark or name b3^ filing with the secretar}^ of state his claim to the same and a copy or description of such trade-mark or name, with his affidavit attached thereto, certified to bj^ any officer authorized to take acknowledgments of conveyances, setting forth that he (or the firm or corporation of which he is a member) is the exclusive owner or agent of the owner of such trade-mark or name. 3198. Record of trade-marks kept by secretary of state. Sec. 3198. The secretary of state must keep for public examination a record of all trade-marks or names filed in his office, with the date when filed and name of claimant; and must at the time of filing collect from such claimant a fee of three dollars in gold coin, to be paid into the state library fund. 3199. Original oivners of trade-marks. Sec. 3199. Any person who has first adopted, recorded, and used a trade- mark or name, whether within or beyond the limits of this state, is its original owner. Such ownership may be transferred in the same manner as personal property, and is entitled to the same protection by suits at law; and any court of competent jurisdiction may restrain, by injunction, any use of trade-marks or names in violation of this chapter. CHAPTEE VIII. WEIGHTS AND MEASUEES. 3209. Standard of weights and measur-es. Sec. 3209. The standard weights and measures now in charge of the sec- retary of state being the same that were furnished to this state by the govern- ment of the United States, and consisting of one standard yard measure; one set of standard weights, comprising one troy pound, and nine avoirdupois weights of one, two, three, four, five, ten, twenty, twenty-five, and fifty pounds, resj)ectively; one set of standard troy ounce weights, divided decimally from ten ounces to the one ten-thousandth of an ounce; one set of standard liquid capacity measures, consisting of one wine gallon of two hundred and thirty-one cubic inches, one half gallon, one quart, one pint, and one half pint measure; and one standard half bushel, containing one thousand and seventy-five cubic inches and twenty-one hundredths of a cubic inch, according to the inch hereby adopted as the standard, are the standards of weights and measures throughout the state. 3210. Unit of extension. Sec. 3210. The standard yard is the unit or standard measure of length and surface from which all other measures of extension, whether lineal, superficial, or solid, are derived and ascertained. 3211. Division of yard. Sec. 3211. The yard is divided into three equal parts, called feet, and each foot into twelve equal parts, called inches; for measures of cloth and other commodities commonly sold by the yard it may be divided into halves, quarters, eighths, and sixteenths. 8212. Bod, mile, and chain. Sec. 3212. The rod, pole, or perch contains five and a half yards, and the mile one thousand seven hundred and sixty yards; the chain for measuring land is twenty-two yards long, and divided into one hundred equal parts called links. 391 3213-3223 POLITICAL CODE. 3213. Acre. Sec. 3213. The acre for land measure must be measured horizontally, and contains ten square chains, and is equivalent in area to a rectangle sixteen rods in length and ten in breadth; six hundred and forty acres being contained in a square mile. 3214. Unit of weights. Sec. 3214. The standard avoirdujiois and troy weights are the units or stand- ards of weight from which all other weights are dei'ived and ascertained. 3215. Division of pound. Sec 3215. The avoirdupois pound, which bears to the troy pound the ratio of seven thousand to live thousand seven hundred and sixty, is divided into six- teen equal parts, called ounces; the hundred weight consists of one hundred avoirdupois pounds, and twenty hundred weight constitute a ton. The troy ounce is equal to the twelfth part of the troy pound. 3216. Unit of liquid measures. Sec. 3216. The standard gallon and its parts are the units or standards of measure of capacity for liquids, from which all other measures of liquids are derived and ascertained. 3217. Barrel and hogshead. Sec 3217. The ban-el is equal to thirty-one and a half gallons, and two bar- rels constitute a hogshead. 3218. Unit of solid measure. Sec 3218. The standard half bushel is the unit or standard measui'e of cai')acity for substances other than liquids, from which all other measvu-es of such substances are derived and ascertained. 3219. Division of half bushel. Sec. 3219. The peck, half 2>eck, quarter peck, quart, and pint measures for measuring commodities other than liquid are derived from the half bushel by successively dividing that measure by two. 3220. Division of capacity for commodities sold by heap measure. Sec. 3220. The measures of cai:»acity for coal, ashes, marl, manure, Indian corn in the ear, fruit, and roots of every kind, and for all other commodities commonly sold by heap measure, are the half bushel and its multii^les and subdivisions; and the measures used to measure such commodities must be made cylindrical, with plane and even bottom, and must be of the following diameters from outside to outside: the bushel, nineteen and a half inches; half bushel, fifteen and a halt' inches, and the peck, twelve and a third inches. 3221. Tlrap measure. Sec 3221. All commodities sold by heap measure must be duly heaped up in the foi-m of a cone; the outside of the measure, by which the same are meas- ured, to be the limit of the base of the cone, and such cone to be as high as the article will admit. 3222. Contracts construed accordingly. Sec 3222. Contracts made within this state for work to be done or for any- thing to be sold or delivered by weight or measure, must be construed according to the foregoing standards. 3223. Weights of bushels of various products. Sec 3223. Whenever wheat, lye, Indian corn, barley, buckwheat, or oats are sold by the bushel, and no special agreement as to the weight or measurement is made by the parties, the bushel consists of sixty pounds of wheat, of fifty-four pounds of rye, of fifty-two pounds of Indian corn, of fifty pounds of barley, of forty pounds of buckwheat, and of thirty-two pounds of oats. 392 GENERAL POLICE OF STATE. 3233-3234 CHAPTER IX. LABOR AND MATEKIAL ON TUBLIC BUILDINGS. 3233. Labor on public buildings must be done by day's work. Sec. 3233. All work done ujion the public buildings of this state must be done under the supervision of a superintendent, or state officer or officers having- charge of the work, and all labor employed on such buildings, whether skilled or unskilled, must be emj)loyed by the day, and no work upon any of such buildings must be done by contract. 3234. Material must be furnished by contract. Sec. 3234. All materials to be used on any of the public buildings must be furnished by contract, in accordance with the plans and specifications and pro- posals therefor. Au Act to regulate the erection of public buildiugs and structures. Approved April 1, 1872; 1871-2, 925. Plans and specifications — Advertisement. Section 1. When by any statute of this state power is given to any state or county officer or officers, or to any board of supervisors or corporation, or any board of trustees or commissioners, or other person or persons created or ap- pointed by authority of any such statute, to erect, or cause to be erected or constructed, any state or county or other building or structure, it shall be the duty of said officer or officers, board of supervisors, corporation, or board of trustees, or commissioners, or other j)erson or persons, to advertise for plans and specifications in detail for said building or other structure, and to state in said advertisement the amount authorized by law or otherwise to be expended for the erection of said building or structure; and also the premium to be awarded to the architect whose plans and s^^ecifications for the same may be adoj)ted. Architect's bond for contract. Sec. 2. Whenever the plans and specifications of any architect shall be adopted, such officer or officers, board of supervisors, or corporation, or board of trustees, or commissioners, or other person or persons so adoj^ting the same, shall, before any premium shall be awarded for such plans and specifications, require such architect to execute and file with such officer or officers, board of supervisors, corporation, or board of trustees, or commissioners, or other per- son or persons, a good and sufficient bond, with two sufficient sureties thereto, in the penal sum of five thousand dollars, to be approved by such officer or officers, board of supervisors, corjDoration, or board of trustees, or commis- sioners, or other person or persons, as the case may be, and conditioned that within sixty days from the date of said bond he will, on presentment to him, euter into a contract containing such provisions and conditions as may be required by such officer or officers, board of supervisors, corporation, or board of trustees, or commissioners, or other person or persons; and also condi- tioned that he will give such further bond to secure the faithful performance of such contract, with such sureties as may be required of him, in the event that such officer or officers, board of supervisors, corj)oration, or board of trustees, or commissioners, or other person or persons, so acting under authority of law should, within said sixty days, require said architect to enter into such con- tract to erect such building or structure, at the price named in said advertise- ment to be expended for such purpose. In case said architect whose plans and specifications are adopted should enter into such contract, it shall be the duty of such officer or officers, board of supervisors, corporation, or board of 393 3234 POLITICAL CODE. trustees, or commissioners, or other person or persons, to employ a competent architect or superintendent to superintend the erection of such building or structure, and to see that such plans and specifications are faithfully carried out. When contracts void. Sec. 3. All contracts entered into Ly such officer or officers, hoard of super- visors, corporation, board of trustees, commissioners, or other jDcrson or per- sons, in violation of the provisions of this act, sliall be null and void. Sec. 4. This act shall take eflect and be in force from and after its passage. An Act to regulate contracts ou behalf of the state, iu relation to erections and buildings. Approved March 23, 187G; 1872-6, 427. Before contracting, j^^cins to be furnished. Section 1. That in all cases where the commissioners, directors, trustees, or other officer or officers, to whom is confided b^'- law the duty of devising and superintending the erection, alteration, addition to, or improvement of any state institution, asjdum, or other improvement, erected, or now being erected, or to be erected, by the state, such commissioners, directors, trustees, or other officer or officers, before entering into any contract for the erection, alteration, addition to, or improvement of such institution, asylum, or other improvement, or for the supply of materials therefor, the aggregate cost of which erection, alteration, addition, or improvement, and materials therefor, exceed the sum of three thousand dollars, shall make, or procure to be made, a full, complete, and accurate plan or plans of such institution, asylum, or other improvement, or of an}- addition to, or alteration, or improvement thereof, in all its parts, showing all the necessary details of the work, together with working plans suitable for the use of the mechanics or other builders during the construction thereof, so drawn and represented as to be j^lain and easily understood; and, also, accurate bills, showing the exact amount of all the different kinds of materials necessary in the erection thereof, addition thereto, or in the alteration or improvement thereof, to accompany said plan or plans; and, also, full and complete specifications of the work to be done, showing the manner and style in which the same will be required to be done, giving such directions for the same as will enalile any competent mechanic or other builder to carry them out, and afford the bidders all needful information to enable them to understand what will be required in the erection, addition to, alteration, or improvement of such institution, asylum, or other improvement, and to make, or cause to be made, a full, accurate, and complete estimate of each item of expense, and the entire aggregate cost of such institution, asylum, or other improvement, or of any addition to, alteration, or improvement thereof, when completed. Plans, etc., to be approved by governor, treasurer, and secretary of state. Sec 2. That such plans, drawings, rei^resentations, bills of materials, and specifications of work, and estimates of the cost thereof, in detail and in the aggregate, as are required in the first section of this act to be made, shall be, when made, submitted to the governor, state treasui-er, and secretary of state, for their approval, and if approved by them, a copy thereof shall be dei)osited and safely kept in the office of controller of state. Sealed jtroposals, votice of. Sec. 3. That after such plans, descriptions, bills of materials, and specifica- tions, and estimates, as are in this act required, are made and ajjproved, in accordance with the requirements of this act, it shall be, and is hereby made, the duty of such commissicniers, directors, trustees, or other officer or officers, to whom the duty of devising and superintending the erection, addition to, alteration, or improvement of such institution, asylum, or other improvement, 3U4 GENERAL POLICE OF STATE. 3234 as in this act provided, to give or cause to be given public notice of tlic time and place, when and where sealed proposals will be received for perfonning the labor and furnishing the materials necessaiy to the erection of such institution, asylum, or other improvement, or for the adding to, altering, or improvement thereof, and a contract or contracts, based on such sealed proposals, will be made; which notice shall be i:)ublished weekly for four consecutive weeks next preceding the day named for the making of such contract or contracts, in the paper having the largest circulation in the county where the work is to be let, and in two daily papers having the largest circulation and published each in the cities of San Francisco and Sacramento, and shall state when and where such plan or plans, descriptions, bills, and specitications can be seen, and which shall be open to public inspection at all business hours between the date of such notice and the making of such contract or contracts. Bond that contractor will perform contract. Sec. 4. That on the day named in said public notice, said commissioners, directors, trustees, or officer or officers as aforesaid, shall proceed to publicly open said sealed proposals, and shall award such contract or contracts for doing the work and furnishing materials for the same, to the lowest bidder, giving resiDonsible bonds ; provided, always, that no i:)roposaIs shall be considered unless accompanied with a bond of said proposer, equal to ten per cent, of his j)roposal, with sufficient sureties, conditioned, that if said proposal shall be accepted, the party jiroposiug will duly enter into a proper contract, and faith- fully perform his or their contract or contracts, in accordance with said proposal, and the plan or plans, specifications, and descriptions, Avhich shall be and are hereby made a part of such contract or contracts; and provided further, that such contract or contracts shall not be binding on the state until they are sub- mitted to the attorney-general, and by him found to be in accordance with the provisions of this act, and his certificate thereon to that effect made; and j)ro- vided further, that if in the opinion of such commissioners, directors, trustees, or other officer or officers, the acceptance of the low^est bid or bids shall not be for the best interests of the state, it may be lawful for them, wdth the written advice and consent of the governor, state treasurer, and secretaiy of state, to accept such jproposal or proposals opened, as in their oj)inion may be better for the interests of the state, or reject all proposals and advertise for others in the manner aforesaid. All contracts shall provide that such commissioners, direc- tors, trustees, or other officer or officers may, as hereinafter provided, and on the conditions stated, make any change in the work or materials. No change in plan to be made unless ajyproved as original. Sec 5. That no change of the plan or plans, descriptions, bills of materials, or specifications, which shall either increase or decrease the cost of said institu- tion, asylum, building, or improvement, exceeding the sum of one thousand dollars, shall be made or allow^ed, after they are once approved and filed with the controller of state as herein required, until such proposed change shall have received the approval of the governor, state treasurer, and secretaiy of state; and when so approved, the plan or plans of such change, with the de- scription thereof, and the specifications of the work, and bills of material, shall be filed with the controller of state in the same manner as required before such change w^as made; and no allowance whatever shall be made for work jier- formed or materials furnished under such change of i)lan or plans, or descrip- tions, or specifications, or bills of materials, unless, before such labor is performed and materials furnished, a contract or contracts therefor is made in writing, which contract or contracts shall show distinctly the nature of such change, and shall be subject to all the conditions and provisions herein imposed 395 3234 POLITICAL CODE. xi])on the orig-inal contracts, and be subject also to tlie api^roval of the attorney- general as hereinbefore provided; provided, that all changes in the contract exceeding five hundred dollars, shall be by contracts in writing, with full speci- fications and estimates, and shall become a part of the original contract, and shall be filed with the controller of state, with the original contract; and pro- vided further, that the amount of such change in the contract, plans, descrip- tions, bills of materials, or specifications, shall not, in the aggregate, increase the cost of construction of said institution, asylum, building, or improvement, more than three per centum of the original contract price or cost. Wliole cost not to exceed amoiuit authorized by laiu. Sec. 6. That no contract or contracts shall be made for the labor or material herein provided for at a price in excess of the entire estimate thereof, in this act required to be made, and the entire contract or contracts shall not, includ- ing estimates of expenses for architects and otherwise, exceed in the aggregate the amount authorized by law for such institution, asylum, building, or other improvement, or such addition to, or alteration or improvement thereof, under the 25enalties of section ten of this act hereinafter provided. Directors, etc., to estimate labor and materials, and amount due. Sec 7. At the time or times named in the contract or contracts made and filed with the controller of state, or which has been previously made and filed with him, in accordance with the provisions of this act, for payment to the person or persons with whom such contract or contracts had been made, it shall be and is hereby made the duty of the commissioners, directors, trustees, or other oificer or officers, to whom is confided the duty of superintending the erection of such institution, asylum, building, or imjirovement, or adding to, altering, or improving the same, to make or cause to be made a full, accurate, and detailed estimate of the various kinds of labor performed and materials furnished under such contract or contracts, with the amount due for each kind of labor and materials, and the amount due in the aggregate, which estimate shall be based upon an actual measurement of the labor so performed and materials so furnished, which estimate shall, in all cases, give the amounts of the jn-eceding estimate or estimates, and the amount of labor performed and materials furnished since the last estimate, which estimate or estimates so made, as in this act required, shall be recorded in a book for that purpose to be provided and kept, or caused to be kept, by the said com- missioners, directors, trustees, or other officer or officers, and a certified copy thereof, addressed to the controller of state by the said commissioners, direc- tors, trustees, or other officer or officers, or by such person as they may designate for that purpose, be delivered to the contractor or contractors entitled thereto; provided that upon all estimates of materials furnished and delivered, and not actually having entered into and become a part of said institu- tion, building, or other improvement, there shall not be paid, until the same shall be incorporated into and become a part of said institution, building, or other improvement, exceeding fifty per centum of such estimated value. Controller to compare estimate with contract. Sec. 8. It sliall be the duty of the controller of state, on the receipt of such estimate so certified and ai)i)roved, to compare carefully i\\e same with the con- tract or contracts under which labor was done or materials furnished, and if there had been any previous estimates, then with such estimates; and if, upon such comparison, he shall find such last-named estimate in all respects cor- rect, he shall number the same, place it on file, and have a record thereof made, and give to the jjcrson or persons entitled thereto, taking his or their receipt therefor, a warrant on the treasurer of state for the amount shown 39G GENERAL POLICE OF STATE. 323^ by sncb estimate or estimates to be due, less the amount of ten per centum thereon, which shall be retained as an additional security for the faithful per- foiTnance of his or their contract or contracts, and shall be forfeited to the state in the event of a failure of such contractor or contractors to conform in good faith to the terms and conditions of such contract or contracts; but when the labor to be performed and materials furnished, \inder such contract or contracts, is performed and furnished, and a final estimate thereof made, the controller of state shall include in the warrant or warrants for the amount of such last esti- mate the percentage retained on former estimates. Sec. 9. The treasurer of state shall pay the wai-rants issued by the controller of state, under and by virtue of the provisions of this act, placing the same on file, and keeping a register of the names of the person or persons to whom such warrants are paid. Officer making fraudulent plavs or estimates. Sec. 10. Any commissioner, director, trustee, or other officer or person other- wise api^ointed, whose duty it is to superintend, in whole or in part, the erec- tion of such institution, asylum, building, or imj)rovement, or of adding to, altering, or the improvement thereof, or the making of the plans, descriptions, and specifications of the labor to be performed and materials to be furnished, as j)ro\ided in this act, and the estimates of the cost thereof, or the estimates of the amount of labor done and materials furnished from time to time, under and in accordance with the terms and conditions of the contracts in this act authorized to be made, and the provisions of this act, who shall, in the per- formance of the duty herein imposed upon him or upon them, knowingly make incomj^lete or fraudulent plans, drawings, bills of materials, specifications of work, or estimates of the cost thereof, or permit the work in any other manner than is prescribed in such plans, descrij^tions, and specifications, or with mate- rials inferior to that required by such bills of materials, to the injury of the state; or shall knowingly make false estimates of the labor done or materials furnished, either in the quantity or price thereof, to the injury of the state; or any contractor, or any agent of any contractor or contractors, who shall know- ingly permit materials to be used or work to be done inferior to, or in violation of, the contract of such contractor or contractors, to the injury of the state, shall be deemed and held guilty of a felony, and, upon conviction thereof, shall be confined in the state prison for not less than one year nor more than five years, and be liable to the state for double the amount the state may have lost, or be liable to lose, by reason thereof. Attorney-general to enforce contracts. Sec. 11. It shall be the duty of the attorney-general to have charge of and direct all the jDroceedings necessary to enforce the contracts authorized by this act and the provisions of this act, against such person or persons as become liable to the penalties herein prescribed. Officers to require diligence in contractor. Sec 12. "Whenever, in the opinion of the commissioners, directors, trustees, or other officers charged with the duty of devising and superintending the erec- tion, alteration, addition to, or improvement of any state institution, asylum, building, or other improvement under this act, or any law of this stale, the work under any contract made in pursuance of this act, or any such law, is neglected by the contractor or contractors, or that the same is not j^rosecuted with the diligence and force specified, meant, or intended in and by the terms of the contract, it shall be lawful for such commissioners, directors, tnistees, or other officers, to make a requisition upon such contractor or contractors for such additional specific force, or for such additional specific materials, to be brought 397 3234-3245 POLITICAL CODE. into the work under such contract, or to remove improper materials from the grounds, as in the judgment of such commissioners, directors, trustees, or other officers, said contract and its due and faithful fulfillment require; of which ac- tion of said board or other officers, due notice in writing, of not less than five days, shall be served upon such contractor, or his or their agent having charge of the work. And if such contractor or contractors fail to comply with such requisition within fifteen days, it shall be lawful for said commissioners, direc- tors, trustees, or other officers, with the consent, in Avriting, of the governor, treasurer of state, and secretary of state, to employ upon such work the addi- tional force, or supply the materials so specifically required as aforesaid, or such part of either, as they may deem proper, and to remove i}uproj)er materi- als fn)m the grounds; and it shall be the duty of such commissioners, direc- tors, trustees, or other officers, to make separate estimates of all such additional force or materials so employed or supplied as aforesaid, and which, being certified to by said commissioners, directors, trustees, or other officers, shall be paid by the controller of state the same as if made out agreeably to section seven of this act, and the amount so paid shall be charged against said con- tractor or contractors, and deducted from his or their next, or any subsequent estimate; or the same, or any part thereof, not paid as aforesaid, may be recov- ered by action from such contractor or contractors, and their sui^eties. Time to be fixed for completion of contract. Sec. 13. In all contracts made under the provisions of this act, there shall be a provision in regard to the time when the whole, or any specified portion, of the work contemplated in said contract shall be completed, and also providing that for each and every day the same shall be delayed beyond such time or times so named, the said contractor or contractors shall forfeit and pay to the state a sum of money, to be fixed and determined in said contract, to be deducted from any payment or payments due, or to become due, to said contractor or con- tractors. Applicable to former contracts. Sec 14. All contracts now made and not performed, for the erection, altera- tion, addition to, or improvement of, any state institution, asylum, building, or other improvement, shall, as far as practicable, be performed, completed and en- forced and settled for under this act, or may, by the consent of the contracting parties, be made to conform to, and proceed under, the provisions of this act. Sec. 15. All acts and parts of acts in conflict with the provisions of this act are herebj'^ repealed. Sec. 1G. This act shall take effect from and after its passage. CHAPTER X. HOURS OF LABOR. 3244. ElgJit hour!< a day's work. Skc. 3244. Eight hours of labor constitute a day's work, unless it is other- wise expressly stipulated by the parties to a contract. 3245. Same, on public works. Sec. 3245. Eight hours' labor constitute a legal day's work in all cases M'here the same is performed under the authority of any law of this state, or under the direction, control, or by the authority of any officer of this state acting in his official capacity, or under the direction, control, or by the authority, of any municipal coii^oration within this state, or of any officer thereof acting as such; and a stipulation to that eff'ect must be made a part of all contracts to which the state or any municipal corporation therein is a party. * 398 GENEKAL POLICE OF STATE. 3255-3284 CHAPTER XI. TIME. 3255. Time, how computed. Skc. 3255. Time is computed according' to the Gregorian or new style; and the first day of January in every year passed since seventeen hundred and fifty- two, or to come, must be reckoned as the first day of the year. 3256. Leap year. Sec. 3250. The several years one thousand nine hundred, two thousand one hundred, tAvo thoiisand two hundred, two thousand three hundred, or any other future hundredth year, of which the year two thousand is the first, except only every fourth hundredth year, are not leaj) years, but common years of three hundred and sixtj^-five days; and the years two^thousand, two thousand four hundred, two thousand eight hundred, and every other fourth hundredth year from the year two thousand, inclusive, and also every fourth year, excejit as above mentioned, which, by usage, in this state is considered a leap year, is a leap year consisting of three hundred and sixty-six days. 3257. Year and its parts. Sec. 3257. The term "year" means a period of three hundred and sixty-five days; a half year, one hundred and eighty-two days; a quarter of a year, ninety- one days, and the added day of a leap year, and the day immediately pi'eced- ing, if they occur in any such period, must be reckoned together as one day. 3253. Week. Sec 3258. A week consists of seven consecutive days. 3259. Bay. Sec. 3259. A day is the period of time between any midnight and the mid- night following. 3260. " Day-time" and "Night-time" defined. Sec 3260. " Day-time " is the period of time between " sunrise" and " sun- set," and " night-time" is the period of time between " sunset" and " sunrise." CHAPTER XII. MONEY OP ACCOUNT. 3272. Money of account. Sec 3272. The money of account of this state is the dollar, cent, and mill. Public accounts and all pi'oceedings in courts must be kept and had in con- formity to this regulation. 3273. Limitation on preceding section. Sec 3273. The provisions of the preceding section do not vitiate or affect any account, charge, or entry originally made, or any note, bond, or other instru- ment expressed in any other money of account; but the same must be reduced to dollars, or parts of dollars, in any suit thereupon. 3274. Amount, how stated in judgments, etc. Sec 3274. In judgments and executions the amount thereof must be com- puted and stated as near as may be in dollars and cents, rejecting fractions. CHAPTER XIII. AUCTIONS. Article I. Auctioneees 3284 II. Regulations eespectino Sales 3302 III. Frauds and Penalties 3322 ARTICLE I. auctioneeks. 3284. Who may become auctioneers, and how. Sec 3284. Any citizen of this state may become an auctioneer for the county 399 3284-3292 POLITICAL CODE. in which he resides, and is authorized to sell real and personal property at public auction, on j^iviuL,' a bond in accordance with the provisions of this article for the faithful performance of his duties, and on the payment of the license therefor. 3285. Jioiul, SHretit\<, approval, and JiUng. Skc. 328'). The bond must be conditioned to be paid to the peoi)le of the State of California, with one or more sureties, in the sum of five thousand dol- lars, and approved bv the county judge of the county iu which the auctioneer proposes to do business, and must be filed iu the office of the county clerk of the county. 3286. GovernmeiU goods are exempt. Sec. 3280. No auctioneer's tcense is required for the selling of any goods at public sale belonging to the United States, or to this state, or for the sale of property by virtue of any jjrocess issued by any state or federal court. 3287. Original appiication, hoio classified. Si-c. 3287. Even- original apjilication for auctioneer's license must be accom- panied with a verified statement of the amount of sales proposed to be made umnthlv, and the license charge must be for the first quarter classified thereby. 3288. Reiu'ival of license. Sec. 3288. Everj'' auctioneer applying to the tax collector for a renewal of his license must accompany the ai^plication Avith a statement, under oath, setting forth that his average receipts jier month on account of sales during the pre- ceding quarter did not exceed the amount specified in the class of license for which he applies. The tax collector must provide blank forms of affidavit for that puiiwse, and administer the oath required to such applicants without charge. 3289. Ji>'neu'al, for how long — Exceeding class by sales. Sec 3289. After the first quarter licenses may be issued for the class fixed for a term not exceeding one year, at the option of the auctioneer. No auc- tioneer must exceed the amount of sales of the class in which his license is fixed. For every violation of this section, in addition to the criminal penalty, the auctioneer forfeits two hundred and fifty dollars. 3290. Xot (o transfer license. Sec 3290. No auctioneer is permitted to transfer his license to any other person for any jjaii of the time for which his license is issued ; nor is any auctioneer permitted to use his license for the purpose of transacting an auction business in more than one store or specified place of business. 8291. Auflionrers ex officio. Sec. 3291 . Iu any city or town where there is no auctioneer, the sheriff or a coiiKtable tliereof is ex officio auctioneer, and is permitted to sell any proi:>erty, real or pernonal, at public auction; and for any delinquency as such ex officio auctioneer he is liable on his official bond. 3292. SuhHlittitr, vlio may br, and ivhen. Sic. 3292. P.very auctioneer in case of inability to attend an auction by reason of BickncKH, or the performance of any duty imposed upon him by law, or dur- ing a temjiorary absence from the city or county within which he is auctioneer, may enq.loy a co])rirtner or clerk to hold such auction in his name and behalf; such employee to take and file with the clerk of the county an affidavit faith- fully to perform the duties of auctioneer. But any auctioneer may employ a crier at any Bale, for whose acts he shall be responsible. [Amendment, approved March 'M, 1871; J me/icZmcn/x 1873-4, 130; took effixt from passage. ^"^ (a) Theorlglusl section did not have the last eentenoe. 400 GENERAL POLICE OF STATE. 3302-3309 ARTICLE II. EEGULATIONS KESPECTING SALES. 8302. Auctioneey's in cities to designate their places of business. Sec. 3302. No auctioneer in any city of this state must have at one time more than one place for holding auction; and every such auctioneer, before acting as such, must file with the clerk of the county in which such city is situated a writing signed by him designating such place, and naming therein the partners, if any, engaged with him in business. 3303. To sell at no other place. Sec. 3303. No auctioneer must expose to sale any articles at any other place than that so designated, excej^t goods sold in original packages as imported, household furniture, and such bulky articles as have usually been sold in ware- houses, or in the public streets, or on the wharves. 3304. Power of city authorities. Sec. 3304. The common council or other corresponding authority of each city may designate such place or jDlaces therein for the sale by auction of horses, carriages, and household furniture, as they deem expedient. 3305. Book for live stock. Sec. 3305. Every auctioneer who sells any animal of the horse kind, or any mules, must keep a book, in which he must register the name of each and eveiy person bringing or offering any horse or mule to be sold, and the name of the j)erson purchasing such horse or mule, together with the date of such sale, and a description of each horse or mule sold, together with the marks and brands. The book is a public record, subject to the inspection of any person desiring to insj)ect the same. 3306. Other books. Sec 3306. Each auctioneer must keep a book, in which he must enter all sales, showing the name of the owner of the goods sold, to whom sold, and the amount paid, and the date of each sale, which book must at all times be open for the inspection of any person interested therein. 3307. Advertisement of auction sales in San Francisco. Sec 3307. Every auctioneer in the city of San Francisco must, under his own name, give previous notice in one or more of the public newspapers printed in that city of every auction sale made by him; and in case he is connected with any joerson or firm, his name must in all cases precede, separately and individually, the name of such j)erson or the title of the firm. 3308. Evening sales in San Francisco and Sacramento. Sec 3308. All sales of goods by public auction in the cities of San Francisco and Sacramento must be made in the daytime, between sunrise and sunset, excepting : 1. Books, prints, or paintings; 2. Goods sold in the original package as imported, according to a printed catalogue, of which samples must have been opened and exposed to public inspection at least one day previous to the sale. 3309. Commissions, and penalty for over charge. Sec 3309. No auctioneer must demand or receive a higher compensation for his services than a commission of one jjcr cent, on the amount of any sales, public or private, made by him, unless by virtue of a previous agreement in writing between him and the owner or consignee. Eveiy auctioneer who violates this section, in addition to the criminal penalty, forfeits to the party aggrieved two hundred and fifty dollars, and must refund the excess of charge. 26 401 3310-3337 POLITIC.iL CODE. 3310. (jaarterhj report of sales. Sec. 3310. Every auctioneer must quarterly make to the county auditor a report, under oath, showing: 1. The aggregate amount of auction sales made by him for the preceding quarter, designating the months and the amount for each month; 2. Tlie davs of each month on Avhich auction sales were made, and the char- acter of property sold by him during each month; 3. The amount of all private sales made, and the day on which they were made ; 4. A statement of any partner, clerk, or other emi)loyee connected with him in his business, and what sales, if any, have been conducted by them, and why; and 5. The particular place where his business is conducted. AKTICLE III. FRAUDS AND PENALTIES. 3322. Penally for not reporting, or reporting falsely. Sec 3322. For every false report made, and for every neglect to make the report required in the preceding article, the auctioneer thereby forfeits the sum of two luinili-ed and fifty dollars, to be recovered on his bond, 3323. Penalties, how recovered, and for what. Sec 3323. The penalties imposed by the provisions of this chapter, not other- wise appropriated, must be prosecuted for by the district attorney of the pro^jer county, the moneys recovered to be paid to the county treasurer for the use of the general fund of the county. 3324. Action on bond. Sec, 3324. Any one aggrieved or damaged by any act of an auctioneer in ■violation of or contrary to the jn-ovisions of this chaj^ter, has an action against him and his boudsmeu on his official bond therefor. CHAPTER XIV. FIRES AND FIREMEN. 3335. Pire companies, hoiv organized. Sec 333.^. Fire companies in incorporated cities and towns are formed and organized under special laws, or under authority conferred upon the city or town government. Those in unincorporated towns and villages are organized by fib'ng with the recorder of the county in wliich they are located a certificate in writing, signed by tlie foreman or presiding officer and secretary, setting forth tlie date of the organization, name, officers, and roll of active and honor- ary members, which certificate and filing must be renewed exerj six months. 3336. To elect officers and adopt and enforce by-laws. Sec. 3336. Every such fire company must choose or elect a foreman, who is the presiding officer, and a secretary and treasurer, and may establish and adoi)t by-laws and regulations, and impose penalties, not exceeding five dollars or expulsion for each offense. 3337. Firemen exempt from m Hilary and jury duly. Si;c. 3337. Tlie officers and members of unpaid fire companies regularly organized and exempt firemen are not subject to military duty, except in case of war, invasion, or insurrection, nor are they subject to perform juiy duty. 402 GENERAL POLICE OF STATE. 3338-3344 8338. Exempt certificate, by and to whom issued. Sec. 3338. Every fireman who has served five years in an organized fire com- pany in this state is an " exemjit fireman," and must receive from the chief engineer of the department to which he belonged a certificate to that effect. Every active fireman must have a certificate of that fact signed by the chief of the fire department or the foreman of the company to which he belongs; such certificates must be countersigned by the secretary, and over the seal of the company, if one is provided. Either certificate entitles the holder to exemption from military and jury duty. 3339. County clerk may issue exempt certificates, when. Sec. 3339. In lieu of issuing certificates to exempt firemen by the chief of the fire department, as provided in the last section, on the certificate of the fore- man and secretary of any fire comj^any, or the chief of the department, pro- visions being made therefor in the by-laws of the company, "exempt certifi- cates ' ' ma}' be issued by the clerk of the county over his official seal and sig- nature, which entitles the holder to like exemption from military and jur^'duty. 3340. Seal of department, who to use and keep. Sec. 3340. Every fire department regularly organized may adopt a department seal, having upon it the arms of the state, and the name of the particular fire department to which it belongs, which must be under the control of and for the use of the secretary, and be by him afiixed to exempt certificates, certificates of active membership, and such other documents as the by-laws may provide. The secretary of every dej^artment having a seal must take the constitutional oath of office and give such bond as the by-laws provide for the faithful performance of his duties. 3341. Record of membership of fire department. Sec. 3341. The secretary of the fire department, or fire company, must keep a record of all certificates of exemption or active membership, the date thereof, and to whom issued; and when no seal is provided, similar entries of certifi- cates issued to obtain county clerk's certificates. Every such certificate is prima facie evidence of the facts therein stated. [Amendment, approved March 30, 1874; Amendments 1873-4, 43; took efi'ect July 6, 1874; 437. ^*' 3342. Duties of chief of fire department. Sec 3342. The chief of every fire department must inquire into the cause of every fire occurring in the city or town of wdiich he is the chief, and keep a record thereof ; he must aid in the enforcement of all fire ordinances duly enacted, examine buildings in process of erection, rej^ort violations of ordi- nances relating to prevention or extinguishment of fires, and when directed by the proper authorities institute prosecutions therefor, and j^erform such other duties as may be by proper authority imposed upon him. His compensation must be fixed and paid by the city or town authorities. 3343. Chief to attend fires and preserve py-operty. Sec 3343. Every chief of a fire department must attend all fires with his badge of office conspicuously displayed, must prevent injury to, take charge of, and preserve all property rescued from fires, and return the same to the owner thereof on the payment of the expenses incurred in saving and keeping the same, the amount thereof, when not agreed to, to be fixed by the police or county judge. 3344. Setting ivoods on fire. Sec 3344. Every person negligently setting fire to his own woods, or negli- gently suffering any fire to extend beyond his own land, is liable in treble damages to the party injured. (o) The original section had the word " primary " insteiid of " prima facie." 403 3315-33C0 POLITICAL CODE. 3345. Krli)igui. 8383. J-Jjcceplion in using liquors. Sec. 3383. The sale of liquors and wines by persons licensed under the pre- ceding section must not be in less quantity than one quart measure. No license must be rofinircd of physicians, surgeons, apothecaries, or chemists, for any wines or sjiiriluous liquors they may use in the preparation of medicines. 3334. Peddlers' and hawkers' license. Skc. 3384. Every traveling merchant, liawker, or peddler who carries a pack and vends goods, wares, or merchandise of any kind other than the manufac- tures or productions of this state, must pay for a license five dollars per month; and every sucli traveling merchant, hawker, or peddler who uses a wagon, or one or more animals, for the jjurijose of vending such goods, wares, or mer- chandise of any kind, must pay for a license fifteen dollars per month; and every traveling merchant, hawker, or peddler who uses a trading boat or other (a) Thf orlfc'ln*! wttlr.ii r«c< i.trd Ixforf tho offi(-e in WaHbington. I nlt«t(l Kt4t. » Uiid .l-imrtiiKiit lit Wiudilugton by au Sec. 3401. H<; imist: »g.-iit «i.i..,lii;. -1 liv th- li.irv. yr.r-K. nnriil. 1. Procure from the United States land offices in this Hec. moo. riii ii(i-en- eral of this state all maps, documeiats, and papers, now in his possession, or under his control, touching the lauds of this state, furnished him by the offi- cers of this state or of the United States, at his earliest convenience. Sec. 3. This act shall be in force from and after its passage. 3405. Surveyor-general to keep certain recordt^. Sec. 3405. The surveyor-general must provide the necessary record-book, and cause all lists or patents for lands from the United States to be recorded therein. 3406. Duty of surveyor-general on application for purchase of lands. Sec. 3406. The surveyor-general must, whenever application is made to hira for any portion of the lands mentioned in section 3398, communicate with the United States laud office, and ask that the lands described in the application be accepted in part satisfaction of the grant under which it is sought to be located. 3407. Cojyy of U. S. register's approval. Sec. 3407. When the acceptance of the register of the United States land office is obtained, he must give to the party applying^ a copy of his approval. 3408. [Sec 3408 was repealed by act of AiotI 3, 1876; Amendments 1875-6, 57; took effect from passage. ^^'] 3409. Surveyor-general to obtain statement as to condition of school sections. Sec 3409. The surveyor-general must, after the survey of any township by the United States surveyor-general, obtain from the United States land office a statement, showing whether or not the sixteenth and thirty-sixth sections therein belong to the state. 3410. Registers and receivers, how compensated for services rendered state. Sec 3410. The registers and receivers of the United States land offices must present their accounts for services rendered the state to the surveyor-general, who, if he finds the same correct, according to fees allowed registers and re- ceivers by act of congress, or by the department of the interior, must certify the same to the state board of examiners, who must audit and allow such ac- counts, and they must be paid out of the general fund. 3411. Surveyor-general to represent state in contests relating to lands. Sec 3411. The surveyor-general must represent the state in all contests be- tween it and the United States in relation to public lands. state abstracts of aU lands applied for by the state, and Sec. 3404. Each purchaser of land from the state, cause the same to be listed to the state; upon receiving a patent for land, must pay to the 2. Act as attorney for the state before the land de- rtf^ister two and one half cents i)er aero therefor, partmeut at Washington; which must be paid into the general fund of the 3. Perform such other duties relative to the public state. lands and the Interest of the state therein as may (a) Repealed section: be required of him by the register or surveyor-gen- Sec. 3408. Where townships have not been sub- eral. divided, but township and other lines have been estab- Sec, 3402. He receives from the state, as compensa- lished so as to show tliiit a tract of hind is included In tion for his services, two and one half cents per acre any thirty-sixth section, and the party applying for the for all lands procured by him to be listed to it. same makes affidavit that tlure is no claim to the same Sec. 3403. On the first Munday of each month the other than his own, and that it is not occupied by any surveyor-general must certify to the board of exaraiu- settler, the surveyor-general may approve such loca- ers the number of acres for which United States lists tion without the acceptance of the register of the have beeu filed in his office during the month next pre- United States land office, and the register of the state ceding, together with a statement of the amount due land office may issue a certificate of purchase therefor, the agent upon the lauds so listed, and if found to be But no patent is issued therefor until the location is correct, the board must approve the account and certify approved by the United States, nor is tlie state respon- it to the controller of state, who must draw his war- sible in damages if the land Is not subject to loca- rant in favor of the agent for the amount thereof, and tion. the state treasurer must pay the same out of the gen- eral fund. 413 3412-3417 POLITICAL CODE. 3412. Place of takmg featimoiuj to be fixed. Sec. 3412. When iie desires to take testimonj' under the provisions of the act of congress to quiet land titles in California, passed July, eighteen hundred and sixty-six, he must request the United States surveyor-general to fix a place convenient of access by the witnesses, and the time for talcing such testimony. 3413. Mivj require nltoruey-general to attend. Stc. 3413. He may require the attorney-general to attend and represent the state at the taking of such testimony; and the traveling expenses of each are a charge agixiust the state. All claims for traveling expenses must be audited and allowed by the board of examiners, and paid out of the general fund. But not more than fifteen hundred dollars must be allowed in any one year for such expenses. 3414. Contest as to approval of surveijs, etc., how dif' rofiulred hy nny of the pro- olUce; and all liiH books and niaps are open to public ist liitli)r«(! the date of the re- iufipection;- til"' Hiin"- In n book kept In his Sko. •.(420. If any county surveyor refuses or neglects ' r ill wlilch It Is received, «iv- to ni'ike any survey within the time prescribed by law, "■-■ ' "' applicant, and the do- the siirveyur-yeneral may within thirty days ai'Utr the •'"^' •ulidivlslonH. expiration of such time appoint some person to make tiilrty dnvH after receiv- the saTne; ami the survey so made, if made within ti hmdM are subject to sale, thirty days after such appointment, must be filed and I'll and Held not<'H, and record recorded in tli<: surveyor-general's office, and is as valid '- '■nil-, and forward d-.ipll- as if made by the county surveyor. ■ '"' " <'"I'y of the appll- Hkc. a421. All surveys must be made according to the fur Bpi)ri)lic'ation3 beretoforc made for the purchase of lauds belonging to this Rtat«, find I'j (■Miifinu the title of the purchasers under such applications. Approved March 27, 1872; 1871-2, 022. Applicali/ju.^ J ur certain lands legalized. Section 1. All ai)i)licati(jns heretofore made for the i3urchase of lands belong- ing to this state, under the provisions of any act authorizing the sale of state lands, shall be good and valid, although the land described in such apj^lication and affidavit may Ije styled salt marsh and tide laud, when, in fact, it is swamp and overHowed land; or may be styled swamp and overflowed land, when, in fact, it is salt marsh and tide land; or may be styled sw^amp and ovei-flowed and Halt niarsli and ti«le land, when, in fact, it may be either. And the application first made shall liave the ])ref('rence by whatever style it may describe the land; provided, the same be in all other respects substantially conformable to law. Certain jiali^nt.^ declared valid. Sec. 2. In all cases where patents have been or may hereafter be issued upon 41G PEOPERTY OF STATE. 3429-3443 any siicli api^lication or affidavits as clescvilied in section one of this act for any such land, the same shall he deemed and held to convey tlie leji^al title to the land in such patent or patents described to the ])urchaser therein mentioned, by whatever style such land may be designated in such patent; and the State of California does hereby grant to the purchasers named in such patents, or their assigns or grantees, in case the title has been transferred, all its rights, title, and interest in and to the lands in such patents described. Act not to apply to certain, lands. Sec. 3. The provisions of this act shall not be construed to recognize, con- firm, or validate any title to any lands lying within live miles of the city and county of San Francisco, or of the city of Oakland, or within one and a half miles of the state prison at San Quentin. Sec. 4. This act shall take effect and be in force from and after its passage. ARTICLE II. SWAMP AND OVERFLOWED, SALT MARSH, AND TIDE LANDS. 3440. Swamp lands, etc.; price and manner of payment. Sec. 3440. The swamp and overflowed, salt marsh, and tide lands belonging to the state must be sold at the rate of one dollar i^er acre, in gold coin, pay- able, twenty per cent, of the principal within fifty days from the date of the approval of the survey b}^ the surveyor-general; and the balance, bearing interest at the rate of ten per cent, per annum, j)ayable in advance, is due and paj'able one j-ear after the passage of any act of the legislature requiring such pay- ment, or before, if desired by the purchasers. Bonds or warrants of districts haviug an outstanding indebtedness are receivable in payment for lands in such district at par. 3441. Application not to he approved until land segregated. Sec. 3441. The surveyor-general of the state must not approve any applica- tion, nor must the register issue evidence of title, for swamj) and overflowed land, until six months after the same has been segregated by authority of the United States. [Amendment, approved March 28, 1874; Amendments 1873-4, 141; took effect immediately .'^^'^ 3442. Settlers preferred purchasers for ninety days. Sec. 3442. Settlers upon swamj3 and overflowed lands belonging to the state who occupy the same for farming or grazing purposes, and whose occupation is evidenced hj actual inclosure, or by ditches or monuments showing the actual extent thereof, are preferred purchasers for such lands for six months after segregation. 3443. AppAication for purchase of sxcamp, etc., land. Sec. 3443. Any person desiring to j^urchase swamp and overflowed or tide lands above low tide, must make an afiidavit and file the same in the office of the surveyor-general of the state, that he is a citizen of the United States, or has filed his intention to become so, a resident of the state, of lawful age; that he desires to purchase lands (describing them) under the law providing for the sale of swamp, and overflowed, and tide lands; that he does not know of any valid claim to the same, other than his own, and if the land is swamp and over- flowed, that he knows the land applied for, and the exterior bounds thereof; and knows of his own knowledge that there are no settlers thereon, or, if there are, that the land has been segregated more than six months by authority of (a) The original section had the words " survey of " instead of " application," and before " the United States " it had the words " this state or." 27 417 3443-341G POLITICAL CODE. the United States, niul that the hiiKl which he now owns (swamp and over- flo\Yed), to^'ether with that sought to be purchased, does not exceed six hun- dred and foi-ty acres. [Amendment, approved 3Iarck 28, 1874; Amendments 1873-4, 14U; look effect immediatehj:"^ An .\<.-t for the protectiou of .settlers on public lands claimed by the state. Approved March 10, 1871; 1873-4, 327. Xo chiim a()otni!t bona fide settlers. Sechon 1. From and after the passage of this act, no claim shall be made by the state to any land as swamp or overflowed, nor shall the same be segregated by authority of the state, for Avhich pre-emption or homestead patents have been issued liy the United States, or upon which there are settlers, occupying the land in good faith, who have filed their pre-emption or homestead declaratory statement; nor shall the register of the state land office receive any application for swamp or overflowed land", unless the apjDlication be accompanied by a certificate from the register of the United States laud office for the district in which the land is situated, that there is no pre-emption or homestead filing upon the land sought to be purchased. Sf.''. 2. This act shall take effect and be in force from and after its passage. 3444. Jf made by female, what. Sec. 3444. If the apjjlicant is a female, such affidavit must also show that she is entitled to purchase real estate in her own name. 3445. Application, to tvhom to be made. Sec 3445. Any person desiring to purchase lands as provided in section 3443 of this code, which have been segregated by authority of the United States, but which have not been sectionized by the same authority, must apply to the surveyor of the county in which the land is situated to have the laud which he desires to purchase surveyed, and a certificate of such survey must be attached to the affida^•it required for the purchase of lands, as provided in said section. All surveys required of county surveyors by the j^rovisions of this section ^uust conform as nearly as jiracticable to the system adopted by the United States for the survey of the public lauds. [Amendment, approved March 28, 1874; A7n>'niline}d.'i 1873-4, 141; took effect immediately.^^'' 3446. J'l-tUion for formation of reclamation district. Sec. 344G. Whenever the holders of title or evidence of title representing one half or more of any body of swamp and overflowed, salt marsh, or tide lands, KUKceiitible of one mode of reclamation, desire to reclaim the same, they may present to the board of supervisors of the county in which the lands or the greater part thereof are situated, at a regular meeting of the board, a petition, setting forth that they propose to form a district for the reclamation of the same, u doscrii)ti(m of the lands by legal subdivisions or other boundaries, the county in whicli they are situated, the number of acres in the proposed district, and in each tract, with the names (if known) of the owners thereof, and desig- nating UH uns(jld any lamhs not reduced to private ownership. [Amendment, approved March 30, 1874; Amendments 1873-4, 45; took effect July 6, 1874.*"' (n) Origlrisliwrllon: ^h) Originnl Bfotion: Kkc. ■■'■iU. Any i.«r-<.n cl.mii.;; to piirchntio Hwamp Sec. 344r>. Tlic nffidavit must be filetl in the office of tnd e. ■ 111. Ko. B n-Kidcntof the when surveys have already been made, tBen mako » state, of lawful UK'-, that hi- rl< -rih to iiunhase liinds survey of the land. (deHcrihiuK thciii) uu.ler th<- la^ j.n.viiliiiK I'T th<- Hale [c) 'Original section: of Hwatii]. i.nd ..v.-rftow til"- Hniii. -,tii< rlhau his representing one half or more of anybody of swamp own, and. if tJie land is swamp and ov.rlli^wed, that and oveillowed, salt marsh and tide lands, susceptible there are no settlers thereon, or If they are. that the of one mode of reclamation, desire to reclaim the lADd has been segregated more than six moutua. same, they may present to the board of supervisors of 418 PROPEKTY OF STATE. 3447-3451 3447. Affidavit and publicaiion. Sec. 3447. The petition must be verified by the affidavit of one of the peti- tioners, and must be published for four weeks next preceding' tlio liearing' thereof, in some newspaper published in the county in which the lands are sit- uated; or, if there is no newspaper published in the county, then it must be published in some newspaper having- a general circulation in the county, and an affidavit of publication must be filed with such petition. An Act relative to the powers of the boards of supervisors of the counties of Yolo and Solano. Approved March 25, 187-t; 1873-4, C02. Powers of supei'visors in Yolo and Solano counties. Section 1. The boards of supervisors, respectively, of the counties of Yolo and Solano, shall have power to approve any petition presented pursuant to sections thirty-four hundred and forty-six and thirty-four hundred and forty- seven of the Political Code, whether the lands described in the j)etition form a part of another district or not. Liability. Sec 2. The district so formed shall be liable for its proportion of an}' out- standing- indebtedness against any swamp land district from which new district is taken. Code. Sec. 8. Such new district shall proceed in its organization and acts of recla- mation according to the provisions of the Political Code. Sec. 4. This act shall take efl^ct immediately. 3448. When the district is situated parily in different counties. Sec. 3448. "When a district is situated partly in different counties the trustees must, after the petition has been granted, forward a copy thereof to the clerk of the board of supervisors of each of the counties in which any portion of the district may lie, and the board to which the same is forwarded must not allow another district to be formed within such district, unless with the consent of the trustees thereof. 3449. Proceedings on appeal of petition. Sec. 3449. If the board of supervisors find, on the hearing of the petition, that its statements are correct, they must make an order approving the same. If it be shown that any land has been improperly included in or excepted from the proposed district, they must reform the district in such respects in their order. The order of approval must be indorsed on or attached to the petition, and be signed by the president and attested by the clerk of the board. [Amend- ment, approved March 30, 1874; Amendments 1873-4, 45; took effect July 6, 1874.^''> 3450. Petition, when to he recorded. Sec 3450. The petition must then be recorded by the county recorder in a book kept for the purpose of recording papers relating to reclamations, and a certified copy thereof forwarded to the register. 3451. Duty of register on receipt of copy. Sec 3451. The register must thereupon forward to tlie county treasurer a statement showing the names of purchasers of land in the district, who have the county in which the lands, or the greater portion (a) Original sei'tion: thereof, are situated, at a regular meeting of the Sec. ;)449. If the board of Bupprvisors find upon the board, a petition setting forth that they desire to adopt hearing of the ii< tition tliat tlic statements are correct, measures to reclaim the same, the description of the and that no land is improperly included in orexcepted lands by legal subdivisions, the quantity snld, and from the district, they must note their approval on the the quantity remaining unsold, the number of acres petition, whicli approval must be signed by the presi- in the whole district, and tlie number of acres in each dent and attested by the clerk. tract sold, with the names (if known) of the owners thereof. 419 3451-3457 POLITICAL CODE. paiil in full therefor. [Amendment, approved 2Iarch 30, 1874; Amendments 1873-4, 4G; took effect July G, 1874.^"" 3452. DiMrkf Inj-Iavs and tnn'tees. Si;c. 3452. After the approval of the petition, the petitioners, or a majority of them, may make by-laws for the management of the district, and must elect three pei-sons o^vninJ,^ land in the district, to act as a board of trustees thereof, wl)o shall kec}! their office in the district or as near as practicable for the trans- action of all laisiness pertaining to the reclamation of the distiict, and their books and papers shall be opened to inspection by any one person interested at all times. [Amendment, approved March 30, 1874; Amendments 1873-4, 4G; took errtct July 6, 1874.*'" 3453. Jiy-laivs must he signed and recorded. Skc. 3453. The by-laws thus adopted must be signed by the holders of cer- titicates of purchase or patents representing at least one half of the laud so to be reclaimed or benetited, and be recorded by the county recorder in the same book and immediately following the petition. 3454. Poxrers of iru.^tees. Sec. 3454. The board thus formed have power to elect one of their number president thereof, and to employ engineers to survey, plan, locate, and estimate the cost of the work necessary for reclamation, and the land needed for right of way, including drains, canals, sluices, water gates, embankments, and material for coustniction, and to construct, maintain, and keep in repair all works nec- essary to the object in view. 3455. Board of trustees to report plans, etc. Sec. 3455. The board of trustees must report to the board of supervisors of the county, or, if the district is in more than one county, then to the board of suj>ervisoi-s in each county in which the district is situated, the plans of the work and estimates of the cost, together with estimates of the incidental ex- ]i('nses of superintendence, repairs, etc. 3456. Commissionei's to assess charges for reclamation purjjoses in coin. Slo. 345G. The board by which the district was formed must appoint three commissioners, di.-siuterested persons, resident of the county in which the dis- trict or some jjart thereof is situated, who must view and assess upon the lands situated within the district a charge proporiiouate to the whole expense and to tlio benetits which will result from such works, and estim^ated in gold and silver voiu of the United States. The same must be collected and paid into the county treasury as hereinafter provided, and be placed by the treasurer to the credit of the district, and paid out for the work of reclamation upon the war- rants of the trustees, approved by the board of supervisors of the county. [Am'-ndmenl, approved March 30, 1874; Amendments 1873-4, 4G; took effect July G, 1874."' 3457. WarrantH, hov presented. Si .-. 3457. The warrants drawn by the trustees must, after they are approved 1a- the Ijoard of supervipoi-s, be presented to the treasurer of the county, and if they are not i)aid on presentation, such indorsement must be made thereon, and they must be registered and bear interest from date of presentation, pro- (a) Th«- oriKlntl wjcllon bad the wordu •• all owiirrs " bcr, by Uic votes or consent of the boldcrs of certifi- iwtt.Hil ..f •• i.unhhM-ni. and'TortLi-lrlandB-iuBtond ciit 3458. District situated partly in different counties — Cliarges, ivhere paid. Skc. 3458. If a district is situated partly iu different counties the charge must be paid into the ti*easury of the county in which the particular tract may be situated, 3459. Additional may be assessed. Sec. 3459. If the original assessment is insufficient to provide for the com- plete reclamation of the lands of the district, or if further assessments are from time to time required to provide for the protection, maintenance, and repair of the reclamation works, the trustees must present to the board of supervisors by which the district was formed, a statement of the work done, or to be done, and its estimated cost, and the board must make an order directing the com- missioners who made the original assessment, or other commissioners, to be named in such order, to assess the amount of such estimated cost as a charge uj)on the lands within the district, which assessment must be made and collected in the same manner as the original assessment. \Ai7iendment, approved March 30, 1874; Amendments 1873-4, 47; took effect July 6, 1874."'> 3460. Commissioners to make assessment lists. Sec. 3460. The commissioners appointed by the board of supervisors must make a list of the charges assessed against each tract of land. 3461. Form of list. Sec. 3461. The list must contain: 1. A description by legal subdivisions, swamp land surveys, or natural boundaiies of each tract assessed; 2. The number of acres in each tract; 3. The names of the owners of each tract, if known; and if unknown, that fact; 4. The amount of the charge assessed against each tract. [Amendment, approved March 30, 1874; Amendments 1873-4, 49; took effect July 6, 1874.^"* 3462. Lists, how and where filed. Sec. 3462. The list so made must be filed with the treasurer of the county, or if the district is situated iu different counties, then the original list must be filed in the county where the petition was filed, and copies thereof, certified by the commissioners, must be filed with the treasurer of each of the other coun- ties. [Amendment, approved Ma7xh 30, 1874 ; Amendments 1873-4, 47; took effect July 6, 1874.<*' 3463. Lien acquired by filing lists. Sec. 3463. From and after the filing of the list, or certified copy thereof, the charges assessed upon any tract of land within the county constitute a lien thereon. 3464. Credit to be given to owners of land. Sec. 3464. AVhen the list, or a certified copy thereof, is filed, the treasurer must credit thereon, to each purchaser who has paid in full for his land, eighty cents per acre, less any amount chargeable against him, and must transfer the (a) The original Bection did not have the words (d) The original section had the word "county" "and bear interest from date of i>resentatiou. pro- before the first "treasurer," and "partly" before vided warrants heretofore issued shall bear no in- "situated." Instead of " where the petition was filed" terest." it had the words " first in order under alphabetical ar- (b) The original section did not have the words raugement." "done, or." (c) The original section did not have the woinIs " swamp land surveys." 421 34G4-34G7 POLITICAL CODE. amount to the credit of the district. [Amendmrnf, approved 3Iarch 30, 1874; Ameudmenis 1873-4, 48; luoJc efect Juhj G, 1874.*''' 3465. Payment, hmv mode. Skc. 34G5. The lists thus prepared and filed must remain in the office of the treasurer for thirty days, or longer, if ordered by the hoard of trustees; and during the time they so remain any person may pay the amount of the charge assessed against any tract of land to the treasurer, in gold coin of the United States, or in warrants of the district drawn by order of the trustees thereof, and ai>i)rovcd by the board of sui)crvisors of the county. Where payment is made in the wairants of the district, legal interest must be computed thereon from the date thereof to the time of such payment, when said warrants must be surrendered to the treasurer and by him canceled. [Ainendment, approved April's, 187G; Ameiidinents 1815-6, 57; took effect from pasaage}'^^ 3466. D'UiKpient charges, hoic collected. Skc. 34GG. If, at the end of thirty days, or of the longer time fixed by the trustees, all of the assessments have not been paid, the treasurer must return the lists to the district attorney, who must commence actions for the collec- tion of such delinquent assessments with the interest thereon from the time the lists were returned to him, and costs, and for the enforcement of the lien on the land assessed, in the district court of the county in which the same is situated, against the person to whom the same is assessed, and if assessed to unknown owners, then against the real owners, and all persons having or claim- ing any interest therein, by fictitious names. Service of complaint and sum- mons in such actions may be made either in the manner prescribed by the Code of Civil Procedure, or by posting a cojiy of the summons at the court-house door, and publishing the same once a week for four successive weeks, in a news- paper published in the count}', and such jDOsting and jjublication is equivalent to pergonal service on all persdns having, or claiming any right, title or interest in the land assessed, whether named as a party in such action or not. Proof of sucli posting and publication must be made by the certificate of the sheriff, or affidavit of the district attorney. In case the service be made by posting and publication, the defendant or any person claiming any interest in the land assessed, may appear and answer the complaint within forty days after the expiration of the four weeks of posting and publication. Assessments on sevtral tracts may be included in the same action, if listed to the same person. In such action the court may decree and adjudge a lien against the tracts atwcKsed, and order them to be sold on execution or decree, as in other cases of gale of real estate. The judgment or decree must direct that the sale be made for gold and silver coin of the United States. The district attorney nuist pay the moneys collected to the county treasurer, who must place thd same to the credit of the district. [ArnendmenI, approved 2Iarch 30, 1874; Amendments 1873 4, 48; look effect July 6, 1874.*'=> 3467. Work uf reclamation to be done under direction of trustees. Skc. 34G7. Tlie work necessary for reclamation must be executed under the direction and in the manner prescribed by tlie board of trustees. (a) OrtKJnj1iM- ■ - . > til. r. (Ulster of the land cost. ''"■ : w-.ti<.nthlrty.<,neof'An (c) The original section instead of "commence ^' ..«eiiieiit and hale of lands actions " had the words " proceed at once against all "! ' ,' •■',"", "I'proved March twenty- delinfjuents bv civil action." It did not have any part "*';' hiindn-d and hlxly-elght. of the sr.tion as amended, commen 34T7. If lands have been reclaimed, jiatents to isme. Sec. 3477. The register must thereupon credit each purchaser in the district with payment in full for such lands, and the purchasers are entitled to patents therefor, and the register must forward to the treasurer of the county in which any part of the district is situated, a statement, showing the amount paid by each jnirchaser in the district, including interest, and the county treasurer, after deducting all amounts chargeable against the lands in said district, by reason of moneys drawn from the swamp land fund of the county, must divide the balance pro rata amongst the,original purchasers of land in the dis- trict, or their assigns, and must pay to each purchaser or his assigns, on de- mand, the amount found to be due to him from such computation, out of the moneys in his hands to the credit of the swamp land fund of the county. Neither this nor the jireceding section apj)lies to districts having outstanding indebtedness reiiresented by controller's warrants drawn on the state treasury, until all such warrants are fully paid. [Ainendinent, approved Ilarch 30, 1874; Amendments 1873-4, 50; took effect July G, 1874.'"^ 3478. Old districts may reorganize under this chapter. Sec. 3478. Districts formed under laws in force prior to May twenty-eighth, eighteen hundred and sixty-eight, may reorganize under the provisions of this chapter. 3479. Trustees may compromise indebtedness of, and levy tax to pay the same. Sec 3479. But if such districts are in debt, the trustees thereof have no power to impair or destroy any indebtedness of the district without the consent of the creditors, but may make any arrangement with the creditors for the sur- render of such indebtedness at less than par, and, if authorized by the by-laws, may assess a charge on the property of the district for the payment thereof. 3480. JJonds and ivarranis redeemed may be used by trustees in purchase of land in diirlginal sfictlon. Kuch hinds, and the purchasers are entitled to patents Skc. aiTt;. Time yearH after niln« the statement re- therefur; and tlie register must forward to the treas- ferred to In the prec.-dlnK M-ctl-m the board of super- uri-r of the county in which auv portion of the district vlwirhof thecounly In wlilch the (DMrtcl. or the lartter may be situated a statiiiient showing the amount of portion Ih.r... fin Hituuted. niiiht.uproved March 16, 1874; Amendments 1873-4, 142; took effect from passage; repealed conflicting acts.'-"^ 3483. Districts, how designated. Sec. 3483. All districts organized under this chapter must have a state num- ber, and the register, upon the receipt of a copy of a petition, must number the same, and send their nvunber to the county recorder of the county from which the copy came, and the recorder must number the petition upon record in like manner, and the district must thereafter be known and designated thereby. Districts organized before May twenty-eighth, eighteen hundred and sixty-eight, may retain their number, 3434. In Sacramento, supervisors may employ clerk. Sec 3484. No member of any board of supervisors or any clerk of such board must receive compensation, other than his regular salary' , for services per- formed under this chapter; but the board of supervisors of Sacramento county may employ a clerk to attend to matters pertaining to swamjD lands, and pay such clerk by orders on the swamp land fund of the district for which work is performed, not to exceed five dollars for each day he is actually engaged. 3485. Payment on lands held for five years, when to be made. Sec. 3485. The balance of the principal on all lands in districts having an outstanding indebtedness, which have been sold for five years, is j^ayable at once; and on all lands in such districts which have been sold less than five years, the balance is payable on the first of January following the expiration of five years from the date of sale. 3486. Occupants of land on banks of stream liable for damages, when. Sec. 3486. Any person owning or occupying lands upon the banks of any stream where the lands lying back of such stream are lower than the bank thereof, is responsible for all damages which may be sustained by the owners or occupants of lower lauds by reason of any cut or embrasure made in the bank of such stream by the owner or occupant of the bank, 3487. Mitigation of damages. Sec. 3487, If such cuts were made for the purpose of irrigation, and head gates and culverts have been made which competent persons consider sufficient to restrain the water, and where great diligence has been made to prevent damage, these facts may be pleaded and proved, in mitigation of damages. (a) Original section: upon the payment thcroof the lands described in the Sec. 34^2. If the dlBtrict from which they seek to be petition constitute a district, and are subject to all the set off is not in debt, then the lands may at once be set conditions of this chapter. The amount paid by the off; but if the district has an outstanding indebtedness, petitioners is a charge against the district so formed, then the board must determine what proportion of the and must be collected and paid the same as moneys tor debt the district so sought to be set off should pay; and reclamation. 425 3488-3490 POLITICAL CODE. 3488. Cerlain lands excepted from the provisions of Ms chapter. Sll'. 3488. All swamj) and overtioAved, salt marsh, and tide lands within one mile of the state prison at San Quentiu, within the city and county of San Francisco, city of Oakland, or within five miles of the corporate limits of either, or within two miles of any incorporated city or town, are excluded from the opei-ation of this chapter. The lands mentioned and described in an act to survey and dispose of certain salt marsh and tide lands belonging to the state of California, approved March thirtieth, eighteen hundred and sixty-eight, and in the act supplementary and amendatory thereto, approved April first, eighteen hundred and seventy, must be disposed of as in such acts provided, which are hereby continued in force. 3489. Districts may be consolidated. Sy.c. 3489. Two or more contiguous districts may be consolidated b}- the written concurrence of a majority in acreage, of the land owners of such dis- trict. An agreement, stating the terms of such consolidation, and the names of the ti-ustees of the consolidated district, must be signed by the trustees of each district, or a majority of them, and be recorded in the recorder's ofiSce of the county in Avhich the districts are situated. A ceiiified copy shall be sent to the register of the land office, and he must number such district as consoli- dated district No. — , and send the number to the county recorder, in which the districts are situated, and the consolidated district must thereafter be known and designated thereb}'. [Neiv section, approved March 30, 1874; Amendments 1873-4, 51; took effect July 6, 1874. 3490. Injury to levee — Action — Parties. Sec. 3490. Any person who shall cut, injure or destroy any levee, or other works of reclamation in any district, is responsible for all damages which may be occasioned thereby to such levee Avorks; and an action therefor must be brought in the district court of the county, or either of the counties, in which such levee or works ai'e situated, in the names of the trustees of the district. If tliere be no trustees, then the action may be brought in the name of any laud owner in the district. The amount recovered in such action must be paid to the treasurer of the county, who must jilace the same to the credit of the district. [Sew section, approved March 30, 1874; Amendments 1873-4, 51; took effect July G, 1874. An .\ct to proviile for the proiier distribution, in the several county treasuries, of funds arising from the sale of swamp lauds. Approved, March 28, 1874; 1873-4, 770. Stcamp land fund. Skction 1. "Whenever hereafter a swamp land district shall be organized, and in all cases where districts have heretofore been organized, the board of super- vis«)i-s of each county in whicli any portion of the lands of such district are located, sljall, upon the application of any party interested, direct the auditor and treasurer to set apart from the swamp land fund, in the county treasury, all the money wliich has been or shall hereafter be received in payment of prin- cipal and interest on such lands, as a fund to the credit of such district, except sucli ijioney as may have ])reviously been expended from the swamp land fund for the benefit of land witliin the district. How used. Si:r. 2. The mouf y in tlic district fund, created by section one of this act, shall ]>(: imul out Ucaiions not to he approved for sixty days. Sec. 34118. All applications filed in the surveyor-general's office must be re- tained sixty days before apjoroval. 3499. Contests, how determined. Sec. 3499. If two or more claim the same land, the contest must be deter- mined as proWded in Article I of this chapter; but no person has a right to pur- chase by reason of any settlement or improvement, unless application is made within the timQ^ above prescribed. 3500. Apjjlicaiions for other titan sixteenth or thirty-sixth section. Sec. 3500. Any person desiring to purchase any lands mentioned in section 3494, except the sixteenth and thirty-sLxth sections, must make an affidavit that he is a citizen of the United States (or has iiled his intention of becoming so), a resident of the state, of lawful age; that he desires to purchase such lands (de- scribing the same by legal subdivisions) under the provisions of this title, and that there is no valid claim to such land other than that of the applicant; that he has nut entered any land in part satisfaction of the grant in lieu of sixteenth or thirty-hixth sections, which, together with that now sought to be purchased, exceeds throe liundnd :uid twenty acres. 8501. AJfidnrit xchfit female is applicant. Sec. 3501. If the applicant is a female, the affidavit must also show that she is entitled iu jjurcliase real estate in her own name. 3502. I,(tiid u-arrants received in payment of purchase-money of certain lands. Sko. 3.*02. School land warrants issued by authority of the state are receiv- able in ijayment of the i)urchase-money of any part of the five hundred thou- sand acres of land granted to the state for school purposes. Such payment must be made to the register and the warrants canceled before- the certificate of purchase is issued. 3503. liifjlU of ])re-emption on school land sections. Sec. 3503. In all cases where any person has purchased any part of a sixteenth or tliirty-sixtli section from the United States, or shall hereafter make such pur- chase, or shall be an actual settler on any sixteenth or thirty-sixth section, and 428 PROPERTY OF STATE. 3503 entitled to a pre-einptiou thereto under the hnvs of the United States, for which lands this state has received indemnity, or will or would be entitled to indem- nity under the laws of the United States, the right of the state to such sixteenth and thirty-sixth sections, or parts thereof, are relinquished to the United States for tlie use of such purchasers and their assignees, and of such pve-eniptors. When any person who is in good faith a settler upon any such lands, fails to acquire a title thereto from the United States, he may, within six months after such failure, apply to the state to purchase the same, and his application sliall have preference over all other applications for the purchase of such lands. [Ne^v section, approved March 30, 1874; ximendments 1873-4, 52; took e/J'ect Juhj 6, 1874. An Act regulating the sale of mineral lands [in school sections] belonging to the state. Approved March 28, 1874; 1873-4, 766. Affidavit for imrchase. Section 1. Any person desiring to purchase from this state any portion of any sixteenth or thirty-sixth section, that shall have been designated by United States survey as of a mineral character, or which is so in fact, shall make an affidavit before some officer authorized to administer oaths, that he or she is a citizen of the United States, or, if a foreigner, that he has tiled his intention to become a citizen of the United States; that he or she is of lawful age, and desires to purchase said land, giving a description thereof by legal subdivisions; that he or she has not entered any portion of such mineral lands wdiich, together with that applied for in such affidavit, will exceed forty acres; that there is no occu2:)ation of said land adverse to that which he or she holds, or, if there be ail}' adverse occupation thereof, then he or she must state the name of such adverse occupant, together with the fact that the plat of the township has been on file six months or over, and that such adverse occupant has been in such occupation six months or over. Preferred purchasers. Sec. 2. Any j)erson that shall be in the actual possession of an}' of said lands described in section one, at the time of the survey thereof by the United States, or at the time of the passage of this act, shall be considered a preferred pur- chaser thereof to the extent of his or her mining claim; jnovided, he or she make application for the purchase of the same on or before the first day of Jan- uary, eighteen hundred and seventy-seven, if the j)lat of such survey be already filed in the United States land office; and if not so filed, then within six months after the filing of such plat, as aforesaid. [Amendment, approved Februai-y 3, 1876; 1875-6, 20; took effect from passage ; repealed all acts in covffict.^"'' Contests and actions. Sec. 8. When a contest shall arise as to the mineral character of the lands applied for, or from any other cause, the surveyor-general, or the register before whom the contest is made, must, within thirty days after the adverse application is filed, unless sooner referred, at the request of either claimant, make an order referring such contest to the district court of the county within Avhich the land is situated, and must enter such order in the proper book of his office, and for- ward a copy thereof to the clerk of the court to which the reference is made. Upon the filing of a copy of such order with the clerk of the court, either party may commence an action in said court to determine the conflict, and the court shall have full and complete jurisdiction to hear and determine the same. Unless an action shall be commenced within ninety days after the copy of the (a) The original Beotion did not have the words " to after the filing of the plat of survey in the United the extent of his or her mining claim." It required the States land office or within ten months after the pas- application for purchase to be made within six months sage of the act. 429 3503 POLITICAL CODE. oi-aer of reference sliall have beeu filed with the clerk of the court, the party making' such demaud, or the adverse claimant, if the case is referred without demand, shall he deemed to have waived and surrendered his or her right to jnu-chase, and the sm-veyor-general or register shall proceed as though his or her application had not been made. Sale. Sec. 4. All lands sold under the provisions of this act shall be sold for the sum of two dollars and fifty cents per acre, in United States gold coin, payable to the treasurer of the county in which the lands are situated, within fifty days from the date of the approval by the sui-veyor-general ; and in case said pay- ment is not made within said fifty days, the land described in the location shall revert to the state without suit, and said location shall be and become null and void. All payments made to the county treasurer as above provided, shall be jiaid over and accounted for as other moneys received for state lands are required to be jjaid over and accounted for. Manner of proceedings. Sec. 5. The surveyor-general and register shall, in the matter of approving locations, issuing certificates of purchase or patents, or in other proceedings relating to the sale of lands of a mineral character, which proceedings are not provided for in this act, proceed in the same manner as is now provided for the sale of sixteenth and thirty-sixth sections which are not of a mineral character. Vested 7'ighls. Sec. G. All patents issued by the state to any portion of any sixteenth or thirty-sixth section, shall be subject to any vested and accrued water rights, ditches, and reservoirs, used in connection therewith, acquired by priority of possession under local customs, and the decisions of the coiu'ts, and the right of way for the construction of ditches and canals, for mining and other pui'- poses, over all of the sixteenth and thirt^'-sixth sections owned by the state, is hereby granted and confirmed. Patents, paipnents, jiurchases. Sec 7. After the passage of this act, no patent shall be issued for any of the lauds described in this act upon which, at the time of the application therefor, there was and still is any actual bona fide mining claim, except to the person wlio is the owner of such mining claim under local mining customs; and w^hen an ap])licant for such hinds, not owning such mining claim, shall have paid the purchuse-money therefor, in whole or in part, he may present his certificate of ]>iirchaKe, and receive in exchange therefor, from the register, a certificate showing the whole amount paid; and the controller, upon the surrender of Buch certificate, njust draw his warrant in favor of the person surrendering such certificate, fur the amount therein specified, on the treasurer of state, who must ])ay tlie sum out of the fund into which the purchasCrmoney was paid; pro- vided, that the owner of such mining claim, under such mining customs, shall apply to jiun-hase the same within six months after the plat of the township containing sucli land shall have been filed in the local United States land olfice, or on or before the first day of January, eighteen hundred and seventy-seven; aii.l j.rovided further, that any owner of a bona fide mining claim, who shall liave entered into an agreement with the api)licant for any portion of [the] sixteenth or thirty-sixtli section upon which said mining claim is situated, for tlio procurement of ii title for the same, shall not avail himself of the provis- ions of this section. The governor of this state shall not sign any patent 430 PROPERTY OF STATE. 3503-3518 contrary to the provisions of this act. [Amcndmenl, approved February 3, 1870; 1875-G, 20; took effect from pa>imge ; repealed covjlictiiuj ads}"'' Sec. 8. All acts and parts of acts in conflict Avith this act are hereby repealed. Sec 9. This act shall take effect and be in force from and after its passage. ARTICLE IV. PAYMENTS, OEETIFICATES OF PUUCHASE, AND PATENTS. 3512. Parjments, how made. Sec 3512. Whenever any survey or location has been made or approved, the purchaser must, within fifty days from the date of approval or location, present his copy of the same to the county treasurer of the county in which the land, or some part thereof, is situated, who must receive the amount to be paid, and the fee for the certificate of j^urchase, indorsing his receipt therefor ujion the certificate of location or survey, and returning it to the purchaser. 3513. Failure to jyciy to ivork forfeiture. Sec 3513. In case payment is not made within fifty days, the lands described in the survey or location revert to the state without suit, and the survey or loca- tion is void. All subsequent payments must be made to the county treasurer, in like manner, who must indorse the same upon the certificate. The treasurer must direct the purchaser to take the certificate so indorsed to the auditor, who must charge the treasurer with the amount received, and make his check upon the indorsed receipt. 3514. Register to issue certificates of purchase. Sec 3514. Whenever the register receives from a county treasurer a state- ment showing that an applicant for state lands has made the first payment, he must issue to the person entitled thereto a certificate of purchase, showing the class of land i^urchased, the number of acres, the price per acre, the date of payment, the date from which interest is to be comj)uted, the amount paid and the amount remaining unpaid, which certificate is prima facie evidence of title. [Amendmeiit , approved March 30, 1874; Amendments 1873-4, 52; took effect July 6, 1874.^^' 3515. Certificates of purchase may he sold. Sec 3515. Certificates of purchase, and all rights acquired thereunder, are siibject to sale, by deed or assignment, executed and acknowledged before any officer authorized by law to take acknowledgments of conveyances of real prop- erty, or before the register. 3516. Sale to -be recorded. Sec 3516. All such sales must, when the deed or assignment is recorded by the county recorder, be rejDorted by him to the register, to be entered in the books of his office, 3517. Compensation of recorder. Sec 3517. The recorder is entitled to receive from the purchaser, for making such report, a fee of fifty cents. 3518. Duplicate for lost certificate. Sec 3518. If the owner of a certificate of purchase claims that it has been lost, destroyed, or is beyond his control, the register must take testimony con- cerning the loss, destruction, or reason why the same is beyond his control. (a) The original section after "local mining cub- seven " it had the words " within ten months after the toms"had the words " and not to guch owner in ex- passage of this act." -^^ cess of forty acres;" and instead of " on or before the (b) The original section had the word " primary first day of January, eighteen hundred and seventy- instead of "prima facie." 431 3518-3523 POLITICAL CODE. But tlio party must, before the lieanng, make affidavit that he has not sold the said certiiicate of purchase, or the land described therein; and must publish a notice in some ne^Yspaper in the county ^vllere the land is situated; or if there is no newspaper published in the county, then in some newspaper of general circulation in the county, for at least four weeks, describing the certificate and the lands for which the same was issued, stating the name of the person to whom the same was issued, and the person then claiming to own it, together with the time and place of the heanng. If the register is satisfied of the loss or destruction of the certificate, or that it is beyond the control of the person owning the same, he must issue to the owner thereof a duplicate, with the word "duplicate" written across the face thereof in red ink. Such duplicate shall have the same force and efl'ect as the original. If there is a contest as to the issuing of a duplicate certificate, the register may hear and determine the same, or may refer it to the projier court, as jDrovided in section 3414. [Amend- ment, approved Jfarch 30, 1874; Amendments 1873-4, 53; took effect July G, 1874.'"' 3519. Register to prepare patents, when. Sec 3519. "Whenever final payment has been made for any tract of land, the selection of which has been accepted and approved by the United States au- thorities, or when the tract finally j^aid for or reclaimed is swamp and over- flowed, salt marsh, or tide lands, the register, upon the surrender of the certificate of purchase by the person entitled to the same, must prepare a patent for the land, and send it to the governor, together with a certificate that the laws in relation thereto have been complied with, that payment in full has been made, and that the party named in the prepared patent is entitled to it. 3520. Patent, hoiv executed. S^:c. 3520. The patent must then be signed by the governor, attested by the secretaiT of state, sealed with the great seal of the state, and be countersigned by the register. 3521. Not to ist^ue until one year after approx'al of survey, etc. Stc 3521. No patent must issue until after the expiration of one year from the date of ai)proval of the survey or location by the surveyor-general, nor until the lands are relinquished to the state by authority of the general land office at "Washington. Such relinquishment is not required for locations of the sixteenth and tliirty-sixth sections in place, or for swamp and overflowed lands, shown to be such by the official surveys made by authority of the United States suney or-general . 3522. I'atentH to he recorded and delivered. She. 3522. The register must record all patents in books to be kept in his office for that purpose, and then deliver them to persons entitled thereto. 3523. Effect of patent issued to deceased persons. Stc. 3523. Where a patent for lands is issued in the name of a deceased pei-Bon, the title is vested in the heirs, devisees, or assignees of such person in the same nninner as if the patent had issued to such person during life. (a) Original w;r(lon: tlm prrpon to whom it was IsBued, and the person then Hm-. :i.'*t five ijubhe phices in the county. 3548. Action. Sec. 3548. After the expiration of the fifty days he must, in the name of the people of the State of California, commence actions in the district court against all purchasei-s or holders of certificates of purchase who have not either paid the amount due, together with the cost of publication, or suiTendered the title to the state, as provided in section 3570, to obtain a judgment of foreclosure of the interest of the purchaser or assignee of the purchaser in the land, and to annul the certificate of j^urchase. 3549. Service of k-um7no7}s. Sec. 3541). Senice of the summons in such action may be made by publica- tion in some newspaper published in the county for four weeks, or if no ncAvs- l)ai)er is published in the county, then by posting one copy of the summons for four weeks at the court-house door of the county, and two copies in public places in the township where the land is situated. 3550. Copy of decree to he filed. Sec 3550. Twenty days after the entry of judgment the district attorney must file in the office of the register, and in the recorder's office of the county in which the land is situated, certified copies thereof. 3551. When ijurcha! CHAPTEK II. THE YOSEMITE VALLEY AND MARIPOSA BIG TREE GROVE. 3584. Commissioners to manage. SiA'. 3584. The governor of this state and the eight other commissioners ai)pointed by the governor on the twenty-eighth day of September, eighteen hundred and sixty-four, in accordance with the terms of an act of congress entitled an act autliorizing a grant to the State of California of the Yosemite valley and of the land embracing the Mariposa big tree grove, approved June tliirteenth, eighteen hundred and sixty-four, constitute a board to manage such jjreniiseH. Any vacancy occurring in the board may be filled by the appoiut- njont of the governtn*. The commissioners are known as "The Commissioners to manage tlie Yosemite Valley and the Mariposa Big Tree Grove," and under Huch name tliey and their successors may sue and be sued, and have full power to manage and administer the grant made and the trust created by the act of congress, and to jiiake and adopt all rules, regulations, and by-laws for their (jwn government, and the government, improvement, and preservation of such ])reiiiiKe8. 3585. Guardian , and Uus compensation. Sec. 3585. Tliey may ajtpoint a guardian of the premises, removable at their (.'lHt<-r may »m- uw.I in d< fruyliiK tlie b«m tion after the word " tnasury " the words " quar- exi»iiM-H of procurinK nmi)).. reeor be paid Into the btatc treasury. The 438 REVENUE. 3585-3G17 pleasure, wlio must perform such duties as they may prescribe, and ma}' re- ceive such compensation as they may fix, not to exceed five hundred dollars per annum, 3586. Report of commissioners. Sec. 358G. The commissioners must make a report of their pi'oceedings and of the condition of the premises, through the governor, to the legislature, at every regular session thereof. CHAPTEK III. STATE BURYING GROUNDS. 3596. Title vested in state — Who may he interred therein. Sec. 3596. The fee to the state burying ground, in the city cemeteiy of the city of Sacramento, is in the people of the State of California, and there may be interred therein any person who, at the time of his death, was a state officer, or a member of the senate or assembly. 3597. Duties of trustees. Sec. 3597. The board of trustees of the state burying ground have the control and management of the grounds and the expenditure of all moneys appropriated for the maintenance or improvement thereof. TITLE IX. Bcueuue, Chapter I. Property Ll\ble to Taxation 3607 II. Definitions 3617 III, Assessment of Property 3627 IV, Equalization of Taxes 3672 V. Levy of Taxes 3713 VI. Duties of the Auditor in relation to Revenue 3727 VII. Collection of Property Taxes 3746 VIII. Collection of Taxes by the Assessor on certain Personal Property 3820 IX. Poll Taxes 3839 X. Settlements with the Controller and Payments into State Treasury 3865 CHAPTER I. PROPERTY LIABLE TO TAXATION. 3607. Property subject to taxation. Sec 3607. All property within this state, except the property of the United States, of the state, and of municipal corporations, is subject to taxation. CHAPTER II. DEFINITIONS. 3617. Terms and j)hrases defined. Sec 3617. Whenever the terms mentioned in this section are employed in this title, they are employed in the senses hereafter affixed to them : ^.^^^_4^Y^ rh6-L. 439 3G17-3629 POLITICAL CODE. First. The terai ' ' real estate " includes : 1. The ownership of, claim to, possession of, or light to the possession of laud; 2. All mines, minerals, and quarries in and under the land, and all rights and privileges appertaiuiug thereto; 3. Improvemeuts. ^ Second. The term "improvements" includes: 1. All buildiugs, structures, fixtures, fences, and improvements erected upon or affixed to the laud; 2. All fruit, nut-bearing, or ornamental trees and vines not of natural growth. Third. The term "personal property " includes everything which is the sub- ject of ownership, not included within the meaning of the term "real estate." Fourlli. The term "full cash value " means the amount at which the property would be appraised if taken in payment of a just debt due from a solvent debtor. [Amendment, approved April 3, 1870; Amendments 1875-6, 58; look effect from passage.'-^^ CHAPTEK III. ASSESSMENT OF PROPERTY. 3627. Propertij assessed at full cash value. Skc. 3G27. All projDcrty must be assessed at its full cash value. 3628. A.-,-or to require a statement containing xchat. bi;c. 3(j2'J. He must exact from each person a statement in writing showing separately : 1. All property belonging to, claimed by, or in the j)ossession or under the coutrol or management of such person; 2. All pro])erty belonging to, claimed by, or in the possession or under the control or management of any firm of which such j^erson is a member; 3. All property belonging to, claimed by, or in the possession or under the control or management of any corporation of which such j)erson is president, Becretar)', cashier, or managing agent; 4. The county in which rsuch jjroj^erty is situated, or in which it is liable to taxation; 5. An exact description of all lands, improvements, and jDersonal property, including all vosselB, steamers, and other water craft, and deposits of money or gold dust, and the names of the persons with whom such dejDOsits are made, and the jjlaces in wliich the}' may l^e found; G. All other facts rcipiircd by the state board of equalization or by the aBsesHor. "Whenever one member of a firm or one of the proper officers of a coi-joora- tion lias niade a statement showing the ])roperty of the firm or corporation, another member of the firm or another officer need not include such property in the statement made Ijy him, but his statement must show the name of the person or officer who made the statement in which such property is included. (a) Th«' orlKlnkI iM-- » »« to ndd nt tli< .ml of thi- grown in nurwt-ries lor propagation and Bale," and to flrbt clBUije of the first iutxUvlhlou the wordH "aud omit the second clause of the Becoud Bubdivisioa. 440 EEVENXIE. 3G30-3G33 3630. Supervisors to famish blmik forms of statements, etc. ' ^ ¥ * ^-M. Sec. 3G30. The board of supervisors must furnish the assessor witli "blank^<^~9 forms" of the statements provided for in the preceding section, affixing thereto an affidavit, which must be substantially as follows: " I, , do swear that I am a resident of the county of (naming it); that the above list contains a full and correct statement of all property subject to taxation which I, or any firm of which I am a member, or any corporation, association, or company of which I am president, cashier, secretaiy, or manag- ing agent, own, claim, possess, or control, and which is not already assessed this year, and that I have not, in any manner whatsoever, transferred or disposed of any property, or placed any property out of said county or my possession, for the purpose of avoiding any assessment upon the same, or of making this statement. {Amendment, approved March 24, 1874; Amendments 1873-4, 143; took effect fy-om passage }'■'' 3631. Statement to he filled out and returned to assessor. Sec. 3631. The assessor may fill out the statement at the time he presents it, or he may deliver it to the person and require him, within an appointed time, to return the same to him, properly filled out. 3632. General powers of assessors. Sec. 3G32. Every assessor shall have power: 1. To require any person found within such assessor's respective county, to make and subscribe an affidavit, giving his name and place of residence; 2. To subj^oena and examine any person in relation to any statement furnished to him, or which discloses property which is assessable in his respective county; and he may exercise this power in any county where the persons whom he de- sires to examine may be found, but shall have no power to require such person to appear before him in any other county than that in which the subpo3na is served upon them. Every person who shall refuse to furnish the statement hereinbefore required in this chapter, or to make and subscribe such affidavit respecting his name and place of residence, or to appear and testify when re- quested so to do by the assessor, as above provided, shall, for each and every refusal, and as often as the same is rei^eated, forfeit to the people of the state, the sum of one hundred dollars, in gold coin of the United States, to be re- covered by action brought in theii- name by the respective assessor in any police or justice's court. In case such affidavit shall show the residence of the person making the same, to be in any county other than that in which it is taken, or the statement shall disclose property in any county other than that in which it is made, the assessor shall in the respective case, file the affidavit or statement in his office, and transmit a cojoy of the same, certified by him, to the assessor of the county in which such residence or property is therein shown to be. One half of all moneys recovered by any assessor under the provisions of this section must by him be paid into the treasury of his county, and the other half may be retained by the assessor for his own use. [Amendment, approved Ilarch 24, 1874; Amendments 1873-4, 144; took effect from passage.'-^^ 3633. Property of person neglecting or refusing to give statement, hoiv assessed. Sec 3G33. If any person, after demand made by the assessor, neglects or refuses to give under oath the statement herein provided for, or to comply with (a) The original section did not have the words prena and examine witnefises in relation to any state- "that I am a resident of the county of (naming it)," ment; and all persons are required to testify when re- nor the latter part of the section commencing with the quested so to do by him; and in case ot relusal, the ■words " this year, and that I have not, in any manner judge of any court must issue a subpcrna and compel ■whatsoever, transferred." a refusing witness to give testimony, and may for each (6) Original section: refusal impose a fine not exceeding twenty doUars. 6ec. 3t;s2. The assessor may, in his discretion, sub- 441 3G33-3G^1 POLITICAL CODE. the other requirements of this title, the assessor must note the refusal on the assessment-book, opposite his name, and must make an estimate of the value of the property of such person; and the value so fixed by the assessor must not be reduced by the board of supervisors. 3634. Ai'cnrate description of loroperty , hoic obtained by assessor. Skc. 3(j34. Whenever the assessor deems it necessary to obtain an accurate description of any tract or lot of land in his county, he may require the owner or his figent to furnish the same, with any title papers he may have in his pos- session; and if on demand the owner or agent neglects or refuses to furnish the same, the assessor may emplo}' the county surve3'or to make out a description of the boundaries and location thereof, and a statement of the quantity of land therein; and the expenses of such survey must be returned by the assessor to the county auditor, who must add the amount to the taxes assessed upon the property, which amount so added must, when collected by the collector of the county, be paid over to the county siuweyor. 3635. Assessment of unknoicn or absent oiuners of property. Sec, 3G35. If the owner or claimant of any property, not listed by another person, is absent or unknown, the assessor must make an estimate of the value of such property. 3636. Same. Sec, 3G3G, If the name of the absent owner is known to the assessor, the property must be assessed in his name; if unknown, the property must be assessed to " unknown owners." 3637. Property situated in another county. Sec. 3G37. The assessor, as soon as he receives a statement of any taxal^le property situated in another county, must make a copy of such statement for each county in which the same is situated, and transmit the same by mail or express, to the assessor of the proper covinty, who must assess the same as other taxable i)roi)ei-ty therein. 3638. ( 'nnxifjnod proprrty. Skc. 3G38. All personal property consigned for sale to any person within this state from any place out of this state must be assessed as other property. 3639. Tnisli'cs, (piardians, executors and administratoi'S. S^x^ 'MV.V,). "When a person is assessed as agent, trustee, bailee, guardian, executor or administrator, his representative designation must be added to his naiiif, !iiid the assessment entered on a separate line from his individual assess- Uient. 3640. Holders of stock infirm or corporation. Skc. 3(;40. The owner or holder of stock in any firm or coiporation, the entire capitnl or proi)erty whereof is assessed, must not be assessed individually for his stock in sucli firm or corporation. 3641. I'rojjnrly of firm or rorporntion assessed xoliere situated. SK.r. :jr;41. The iiroperty of every firm and corporation must be assessed in the county where the property is situate, and must be assessed in the name of the firm or corporation. 442 EEVENUE. 3642-3G50 3642. Undistribuied property of deceased persons. Sec. 3642. The undistributed or unpaiiitioned property of deceased persons may be assessed to the heirs, guardians, executors, or administrators; and a payment of taxes made by either binds all the parties in interest for their et^aal projDortions. 3643. Ferries and toll b7-idges, ichere assessed. Jfl. Sec, 3G43. Ferries and toll bridges must be assessed in the county where the ^'^ tolls are collected. 3644. Vessels, where assessed. Sec. 3644. All vessels of every class which are by law required to be regis" ^ tered must be assessed and the taxes thereon paid only in the county, or city and county, where the same are registered, enrolled, or licensed. 3645. Sa7ne. Sec. 3645. Vessels registered, licensed, or enrolled out of and plying in whole or in part in the waters of this state, the owners of which reside in this state, must be assessed in this state. 3646. Boats and small craft. Sec. 3646. All boats and small craft not required to be registered, must be assessed in the county where their owner resides. 3647. Property and money in litigation. Sec. 3647. Money and property in litigation in possession of a county treas- urer, of a court, county clerk, or receiver, must be assessed to such treasurer, clerk, or receiver, and the taxes be paid thereon under the direction of the court. 3648. Property concealed, misrepresented, etc. Sec. 3648. Any property willfully concealed, removed, transfen-ed, or mis- represented by the owner or agent thereof, to evade taxation, ujdou discovery must be assessed at not exceeding ten times its value, and the assessment so made must not be reduced by the board of supervisors. 3649. Property not taxed in previous year. Sec. 3649. Any property discovered by the assessor to have escaped assess- ment for the last preceding year, if such property is in the ownership or under the control of the same person who owned or controlled it for such preceding year, may be assessed at double its value. 3650. Property, how listed. ^ Sec. 3650. The assessor must prepare an assessment book, with appropriate y^ headings, alphabetically arranged, in which must be listed all property within the county, and in which must be specified in separate columns under the a^j- propriate head: /E^: 1. The name of the person to whom the property is assessed; 2. Land by township, range, section, or fractional section; and Avhen such land is not a congressional division or subdivision, by metes and bounds, or other description sufficient to identify it, giving an estimate of the number of acres, locality, and the improvements thereon; 3. City and town lots, naming the city or town, and the number, block, ac- cording to the system of numbering in such city or to\vn, and improvements thereon; 443 3650 POLITICAL CODE. 4. All personal property, sbowing tlie number, kind, amount, and quality; but a failure to enumerate in detail such personal property does not invalidate the assessment; 5. The cash value of real estate, other than city or town lots; G. The cash value of improvements on such real estate; 7. The cash value of city and town lots; 8. The cash value of improvements on city and town lots; 9. The cash value of improvements on real estate assessed to persons other than the owners of the real estate; 10. The cash value of all personal property, exclusive of money; 11. Amount of money; 12. The totiU value of all property; 13. The fignre oue (1), in separate columns, opposite the name of every person liable to pay a road poll tax or a poll tax; 14. Such other things as the state board of equalization may require. The state board of equalization may direct the book to be otherwise than alphabet- ically arranged in the city and county of San Francisco. [Amendment, approved April 1, 1870; Amendmenis 1875-G, 11; took effect immediately .^"'^ Au Act coucerniug the assessment of animals. Approved March 30, 1872; 1871-2, 754. Assessment of o) am ah temporarily pasturing in any county. Section 1. '^^1lenever any person residing in any county of the state, and owning any neat cattle, horses, mules, sheejD, or goats therein, shall drive the same from the county where he resides into any other county, for the purpose of temporarily pasturing the same, all such animals shall be assessed in and for the county where such owner resides, although the said animals shall not be at the time of said assessment in said county in which he ma}' so permanently reside; and such owner shall include such animals in his assessment list, and the assessor of the count}' where such stock are so temporarily grazed shall list the same, with a fidl description of each kind and the number of the same; and for the purpose of making such list, the assessor shall have power, and it is hereby made his duty, to examine on oath the person or persons owning or having charge of such cattle, horses, mules, sheep, or goats touching their number, ownership, and to whom and in what county, if any, they have been assessed for taxation. The list made out as aforesaid by the assessor^ together with a full statement of the same, shall be signed and sworn to by the person or persons owniug or having in charge such stock. Dalies of ansesmrs and trea^iurert^. Sec. 2. The assessor shall file a copy of said list of such stock with the county treasurer of his roiinty, and another copy with the treasurer of the county in which the said stock was first hsted and assessed for taxation. Upon filing the lists aforesaid, with the sworn statement therein that the stock specified in said lists lias been pastured or used in the county mentioned therein during the grazing seas«)n, with the treasurer of the county in which it was assessed for taxation, said treasurer sliall i)ay, on the order of the treasurer of the county in whicli the stock was so jiastured or used, one half of the amount of taxes paid in on the said stock, less tiie cost of collection. (a) Thcf.rl«ln»liM!cOon h»a flfU-en BubdlvlnlonB, of (Iftccnth, above fourteenth, did not have the word whi. h the tlilrt.-.iith waK ah f.ill-.wH; " l;». The total " Btate " nor the last Htutenee, relating to the book in value of all i.r.iM-rty afl •^ ^ ■** . ^ o s S ,o ^:v , o <1J «, !^ A, ^1 ■*** V ^ o o ft ^ Kemarks, . . . Poll tax CO Total tax 0> Total value of all Droneitv . ■ff Amount of monev ■fi Value of personal iiroDeitv ■'ff Value of imp] the owners •ovements on real estate assessed to persons other than of the real estate (fy Value of improvements thereon ^ Value of city and town lots Value of Improvements thereon ^ Value of real estate other than citv and town lots ^ Number of acres . . s o M (^ O o H ft o M ft o go Block o SKf. 3G58. The board of supervisors must provide maps for the use of the asscKKor, Hhowing the juivate lands owned or claimed in the county, and, if Bun-eyed under authority of the United States, the divisions and subdivisions of the hurvf'v; if held under Spanish grants, the exterior boundaries of such grants and the numljer of iicrcs claimed. Maps of cities and villages, or school districts, may in like manner be provided. The cost of making such maps is a county charge, and mubt be i)aid from the county general fund. 448 REVENUE. 3659-3772 3659. Limits of land sold by stale to be Iraiismitted to assessor of county xcliere prop- erty situated. Sec. 3659. On or before the first Monday in March in each year the surveyor- general of the state and the tide land commissioners must make out and trans- mit to the assessor of each county where lands or lots lie that may have been sold by the state, for which certificates of jDurchase, patents, or deeds liave issued during the year preceding, certified lists of such lands or lots, giving a description thereof by congressional divisions or subdivisions, or lots and blocks, together with the names of the purchasers thereof. 3660. When assessor liable for taxes on tniassessed ])roperty . Sec. 3660. The assessor and his sureties are liable on his official bonds for all taxes on property within the county, which, through his willful failure or neglect, is unassessed. 3661. District attorney to prosecute assessor for unpaid taxes, ivhen. Sec, 3661. The district attorney must, after the assessor completes the assess- ment book for the year, commence an action on the assessor's bond for the amount of taxes lost from such willful failure or neglect. 8662. Judgment, ivhen entered against assessor. Sec. 3662. On the trial of such action, the value of the i^roperty unassessed being shown, judgment for the amount of taxes that should have been collected thereon must be entered. 3663. Boiling-stock and improvements of railroads, hmv assessed. Sec. 3663. Where the railroad of a railroad corjioration lies in several coun- ties, its rolling-stock must be aj)portioned between them so that a portion thereof may be assessed in each county, and each county's portion must bear to the whole rolling-stock the same ratio which the number of miles of the road in such county bears to the whole number of miles of such road h'iug in this state. The land occupied and claimed as the right of way, with the track and all the substructures and superstructures which support the same, must be assessed as a whole, and as real estate, without separating the same into lands and improvements, at a certain sum per mile. The improvements, other than the track and the substru.ctures and superstructures which support the same, whether situated upon land occupied and claimed as the right of wa}-, or on other lands, must be sej^arately assessed. Water ditches constructed for mining, manufacturing, or irrigation purposes, and wagon or turnpike toll roads, with all improvements attached to such j)roperties, must be listed by the assessor as real estate, and as a whole, without separating the land and the improvements, either in the description or valuation of the same. [Amendme^^t, approved March 30, 1874; Amendments 1873-4, 158; took effect sixtieth day from "??-. ,, — II y o ' " "^ 0UNTI_J50AKDS OF EquALIZAWON . i_i^jj|_^jj . . . .^ "• • \J i^^PI^ iiATE Board of Equalizatiw -....'.'. • ■3692 ARTICLE I. COUNTY BOAKDS OF EQUALIZATION. 3672. Sujjervisors, ivhen to equalize assessment. Sec. 3672. The board of supervisors of each county must meet on the first (a) The original section was added to the code by of one sentence only, the first of the above ameud- act apjiroved March 27, 1872; 1871-2, 586. It consisted ment. 29 449 3G72-3G80 POLITICAL CODE. Monday of Juh' in each year, to examine the assessment-book and equalize the assessment of property in the county. It must continue in session for that pur- pose from time to time until the business of equalization is disposed of, but not later than the fourth Monday in July. 3673. S(ii»>rru«>rs empuwfred to correct assessment. ^ Sec. 3073. The board has power to determine all complaints in regard to the assessed value of property, and may, except as prohibited in this title, correct auv valuation by adding or deducting such sum as may be necessary to make it conform to the actual cash value. 3674. Xo reduction to be made unless on application of person assessed. Sec. 3(374. No reduction must be made in the valuation of property, unless the party aliected therel)y or his agent makes and files with the board a written application therefor, verified by his oath showing the facts upon which it is claimed such reduction should be made. 3675. Kramination of person assessed by supervisors for purposes of equalization. Sec 3675. Before the board grants the application or makes any reduction applied for, it must first examine, on oath, the person or the agent making the application touching the value of the property of such person. No reduction must be made unless sucli person or the agent making the application attends and answers all questions pertinent to the inquiry. 3676. Supervisors may subpoena' witnesses and take evidence. Skc. 3G7G. Upon the hearing of the application the board may subpoena such witnesses, hear and take such evidence in relation to the subject pending, as in its discretion it may deem proper. 3677. Ai^sessor and deputy to attend upon hearing of application. Sec. 3G77. During the session of the board the assessor and any deputy whose testimony is needed must be present, and may make any statement, or intro- duce and examine witnesses on questions before the board. 3673. County recorder to attend with abstract of titles. Sec 3()78. The county recorder must, when required during the session, attend on the board with an abstract of all unsatisfied mortgages and trust deeds given to secure the payment of loans and other liens on record in his office. 3679. Supervisors to use information and direct entry of mortgages, etc. Sec. 8G79. The board must use the abstract and all other information it may gain from the records of the county recorder or elsewhere in ecjualizing the asKe., 11; took eff'ect imme- dialehj.''' 3695 I Sec. 3095 was repealed by act approved April 1, 1870; Amendments 1875-6, 11; took effect immediately.] ^''7^-^ adcUcL /f.'o /^o-fu %y 3696. Board to notify supervisors amount of tax to be levied. Sec 3090. Between the first and third Mondays in September of each year the board must determine the rate of state tax to be levied and collected upon the assessed valuation of the property of the state, which, after allowing fifteen per cent, for delinquencies in, and costs of collection of taxes, must be sufficient to i-aise the specific amount of revenue directed to be raised by the legislature for state purposes. The board must immediately thereafter transmit to the board of supervisors of each county a statement of such rate, and upon its receipt, the county clerk must, in writing, notify the state board of equalization thereof. [Amendment, approved April 1, 1870; Amendments 1875-0, 11; took eff'ect immediately.^^'' 3697. Penally for refusing to obey rides and regulations of board. Sec. 36t'7. Eveiy person served with a subpcena who failsi or neglects, with- out just excuse, to obey it, and every officer Avho refuses to obey the rules and i-egulations prescribed by the board, or to perform the duties prescribed therein, forfeits to the state five hundred dollars, to be recovered by action in the name of tlie board, which action may be commenced and tried in any county of the state. 3698. District attorney to pn-osecute assessor fraudulently assei'sivg proj^erty. Sec 3098. Whenever the state board of equalization is satisfied that the assessor or a deputy assessor of any county has knowingly, fraudulently, or (n) The original Pectidn had twelve subdivisions, to and including the words " except money," and then the lirht thru- and the luht two being the same as above, proceeded "and solvent debts; such per centum, re- Tlie "itherh were aH follows: spectively, us is sufficient to raise or reduce it to the 4. T" hi'ld rejjiiliir Jiiiaithly meetingsat the state cap- lull cash value. In raising or reducing the valuation Itol •■n the i-emnd Monday in each month, and such of personal property, the board may confine sucli rals- hlH-i ial njeiiin«s ah the ihairman may direct; !i. To ing or reduitiou to one or more kinds of personal ln«-«t at thi- Kt»t<- cupitol on the third Monday in August, property, not exceeding six in number." anl ri-utain hi hehsion until the third Monday in Sep- (c) The original s< ction after the word " must" had ti'iiilxr: (J. At BHch meeting to equfili/.e the valuation the words "make the eiiuabzation from any iuforma- of (I , i.r, 1,. •i\ i,f the Fevi-ral counties in the state, tion it can obtain." an'l f state taxuti- counties is completed, the clerk of the board must erty and !■ .lue Ihereol; H. To cull bcfon- it transmit to each county auditor a statement of the per or any U' ■ on smli visit, any oflicers of the centum to be added to or deducted from the valuation county, a.'.. ■■ ... them to ])roiiiice any jiublic rec- of the property of his county. cinld in tlii-ir •ukLhiv; It. To ihMie subpunas for the at- (>■) The original section read like the section as given ft-ndan<urh n-al estate; mine and transmit to the board of su| ervisors of each .1. The jH TKonnl pnjp«-rty. except money; county the rate of state tax to be levied and collected, 4. The amount of money; which, after allowing eighteen per cent. fi>r deiinquen- Su. h p«-r centum, respectively. 88 1b Bufllcient to raise cles in. and cost of collection of tax. s, must be suffi- nr ridure It to the full cash value. cient to raise the specific amount of revenue directed It was amended by «< t of March 21,1874; Amend- to be raised by the legislature for state ijurpose.s. ments 1«7:'. 4 it: >~o h>- to read like the original down 452 REVENUE. 3(;98-3705 corntptlj assessed any property l>elow its actual cash valvic, it must iuiniediatel}' inform the district attorney of such county in writinj^' of the facts that may have come to its knowledge, with a request that such assessor or deputy assessor be prosecuted, and the district attorney must at once comply with such request. 3699. Clerk and members of board marj administer oaths. Sec. 3699. The clerk or any member of the board may administer and certify oaths. [Secs. 3700 and 3701 were repealed by act approved April 1, 187G; Ajpaend- ments 1875-6, 11; took effect immediately.'"^! /^3ic/<^^^^/^r^- ^y/^^'/'- „_-„ „ ^, /if i ■A'7 ■' ^7' o702. Expejises. Sec. 3702. All necessary expenses in carrying into effect the provisions of this ' title must be allowed the board, not to exceed annually one thousand dollars, the amount thereof to be audited and allowed by the board of examiners, and paid out of the state treasury. [Amendment, a^jproved April 1, 1876; Amend- ments 1875-6, 11; took effect immediately.'-^'' 3703. [Sec. 3703 was repealed by act approved April 1, 1876; Amendments 1875-6, 11; took effect immediately.'"*] 3704. Duty of board upon failure of county boards to apjwint assessors, etc. Sec. 3704. If the board of supervisors of any county fails or refuses either: 1. To allow the assessor to appoint a sufficient number of deputies to make the assessment; or, 2. To furnish the proper books or blanks for his use; or, 3. To furnish the assessor necessary office room; — Then the state board of equalization may, upon the application of the asses- sor, make the allowance, or furnish the proper books, blanks, or office room; and all the expense incurred in carrying into effect the provisions of this sec- tion must, by the secretary of the board, be certified to the controller, who must, in his next settlement with the county treasurer of any such county, re- quire such treasurer to pay the amount out of any funds belonging to such county. Au Act to protect the county treasuries of certain counties. Approved March 16, 1874; 1873-4, 393. Assesso7S of certain counties to pay deputies. Section 1. If the assessor of Siskiyou, Calaveras, Amador, or Alpine county appoints any deputies by virtue of authority derived from the state board of equalization, acting in jDursuance of powers conferred on them by section three thousand seven hundred and four of the Political Code, or by virtue of author- ity derived from the board of sujoervisors of his county, acting in pursuance of powers conferred on them by section three thousand eight hundred and ninet}'- four of the Political Code, the compensation of such deputies must be paid by the assessor. Sec 2. This act must take effect and be in force from and after its passage. 3705. State board may extend time. Sec 3705. The state board of equalization may, by an order entered upouKs minutes, and certified to the county auditor of any county, extend, for not ex- ceeding thirty days, the time fixed in this title for the performance of any act. (a) Repealed eections: tai-y thereof is entitled to repayment of all expenses Sec. 3700. The anuuid salary of each member of the incurred by him in traveling in tlie disoharge of his board appointed by the governor is thirty-six hundred duties, not to exceed one tliousan.l dollars each, the dollars, and the annual salary of the ex officio member amount thereof to be audited and allowed by the board is twelve hundred dollars. of examiners and paid out of the state treasury. Sec. ;4701. The annual salary of the clerk is twenty- (c) Repealed sectin: „ ,^ , ^ , , , four hundred dollars Sec. 3703. Each miniber of the state board of eqiial- (6) Original section: ization appointed by the governor must execute an Sec. 37u2. Each member of the board and the secre- olflcial bond in the sum of ten thousand dollars. 453 3713-3717 POLITICAL CODE. CHAPTEE Y. LEVY OF TAXES. 3713. Amounfs required for several funds. Sec. 3713. The state board of equalization must, for state purposes, for the twentv-ei-^'htb and tAventy-ninth fiscal years, fix sucli an ad yalorem rate of tax- ation upon each one hundred dollars of taxable property of this state, as will raise fur the twenty-eighth fiscal year: 1. For the general fund, two million two hundred and twenty thousand dollars; 2. For the school fund, one million two hundred and one thousand dollars; 3. For the interest and sinking fund, three huncked and fifteen thousand dollars. And for the twenty-ninth fiscal j^ear: 1. For the general fund, one million six hundred and eight thousand dollars; 2. For the school fund, one million three hundred thousand dollars; 3. For the interest and sinking fund, three hundred and fifteen thousand dollars. [Arnendmerd, approved April 3, 187G; Amendmerds 1875-6, 60 ; took effect from passage}^^ 3714. Supervisors to regulate county rate of taxation. Sec 3714. The board of sujDervisors of each county must, on the first Monday of October, fix the rate of county taxes, designating the number of cents on each hundred dollars of property levied for each fund; and must levy the state and county taxes uj^on the taxable property of the county. 3715. ]\lien supervi'^ors fail to levy such taxes, etc. Sec. 3715. The action of the state board of equalization, in fixing the rate of taxation for state jjurposes, is, in the absence of action by the board of super- visors, a valid levy of the rate so fixed, and imposes upon the auditor, tax col- lector and all other ofiicers charged with the performance of any duties under tlie revenue law, the same obligations as if the board of sui^ervisors had made the levy at the proper time. 3716. Ta.r to operate as a judgment or lien against property. Sec. 3716. Every tax has the effect of a judgment against the person, and eveiy lien created by this title has the force and effect of an execution duly levied against all property of the delinquent; the judgment is not satisfied nor the lien removed until the taxes are paid or the property sold for the payment thereof. 3717. Taj- on jjfvsoiial property a lien on realty. Sec. 3717. Eveiy tax due upon personal property is a lien upon the real i:»rop- erty of the owner thereof, from and after the time the same becomes delinquent. \A7iuiidmeut, approved March 30, 1874; Amendments 1873-4, 159; took effect six- tieUi day froi7i passage.''^' (a) The orifdoal Mfctlon iirovldid for the aiiiountB to The section was attain amendrd by net of March .30, b«- ralKtU f..r llii- tw■^■ar^. iJ.-Ion- it took iff. .t. U wi.h ami ndi-d by ac t ap- to be niiBed for tlie twenty-sixth fiscal year, as follows: prfived April 1. IK"'.'; lM71-'i. hW,. Ml Bht.i iix the amounts 1. For the general fund, $1,7SK,0(I0; -2. For the school U> be FMiM d for eiieh «f thow: yenrt* as fcdlows; 1. For fund, $1,11(1,000; If. For the interest and siukinf,' fund, the p n. ml ftin, 11; took ejf'ect immediately. ^^^ 3733. Auditor to retain original assessment book. Sko. 8733. The original assessment book must remain in the office of the auditor. 3734. Tux collector charged with full amount of taxes levied. Sec. 373-4. On delivering the "duplicate assessment book" to the tax col- lector, the auditor must charge the tax collector with the full amount of the taxes levied, and forthwith transmit by mail to the controller of state a state- ment of the amount so charged. 3735. Auditor to verify all statements made by him. Sec. 3735. The auditor must verify by his affidavit attached thereto, all state- ments made by him under the provisions of this title. 3736. Transfer of assessment book from one collector to another. Sec. 3730. The auditor, if the "duplicate assessment book" or the delin- quent tax list is transferred from one collector to another, must credit the 'one and charge the other with the amount then outstanding on the tax list. 3737. penally for failure or neglect of counly auditor. Skc. 3737. If the county auditor fails or neglects to perform the duties pre- scribed by sections 3728 iind 3729 of the Political Code, he shall forfeit to the state live hundred dollars, to be recovered by action in the name of the state board of equalization. [New section, approved March 24, 1874 ; Amendments 1873-4, 150; look effect from passage. 3738. Duplicate assessment book may be dispensed loith. Sec. 3738. The board of supenMsors of any county may, in their discretion, dispense witli the making or use of any duplicate assessment book mentioned in any part of this code; and in all cases where said duplicate assessment book is refi-rred to, it sliall be lawful to use and consider the original assess- ment book in all tlie requirements of every part of this code referring to the same; and all affidavits, or other statements in reference to said duplicate assessment bo 3747. Taxes in San Francisco jMyable at collector's office. o Y" ^ Sec 3747. In the city and county of San Francisco, the notice must specify the ofiice of the collector as the place where taxes may be paid. 3748. In other counties notice to specify place of p)ayment. ^9 - Sec 3748. In other counties the notice must sjDCcify a time and place within each township in the county when and where the collector will attend to receive payment of taxes. 3749. Manner of jncblicafion of notice. Sec 3749. The notice in every case must be published for two weeks in some weekly or daily newspajjer published in the county, if there is one; or if there is not, then by j^osting it in three public jjlaces in each townshij^. 3750. Tax collector to note dale of payment. Sec 3750. The tax collector must mark the date of the payment of any tax in the assessment book, opposite the name of the person paying. 3751. Receipt to be given. /) ~ i Sec 3751. He must give a receipt to the person paying any tax, specifying 7 ^ the amount of the assessment and the tax paid, with a descrii:)tion of the prop- erty assessed. 3752. Taxes of decedents, how paid. Sec 3752. The probate judge must require every administrator and executor ^ (a) The original section was the same except that it had the words "become delinquent" instead of "be de- linquent " in the second 6ubdi\-iBion. 457 3752-37G0 POLITICAL C,ODE. to pay out of the fuuJs of the estate all taxes due from such estate; and no order or decree for the distribution of any property of any decedent among the heirs or devisees must be made until all taxes against the estate are paid. 3753. Setllement of collector icifh auditor, when made. Sec. 3753. On the first Monday in each month the tax collector must settle with the auditor for all moneys collected for the state or county, and pay the same to the county treasurer, and on the same day must deliver to and hie in the office of the auditor a statement, under oath, showing: 1. An account of all his transactions and receipts since his last settlement; 2. That all money collected by him as tax collector has been paid. 3754. Liahilitii of tax collector refusing or neglecting to settle. Sec. 3754. A tax collector refusing or neglecting for a joeriod of five days to make the payments and settlements required in this title, is liable for the full amount of taxes charged ujion the assessment-roll. 3755. Action against collector for such refusal or neglect. Stc. 3755. The district attorney must bring suit against the tax collector and his sureties for such amount, and in case of neglect, the controller of state or the board of supervisors may require him to do so ; and when the suit is com- menced, no credit or allowance must be made to the collector for the taxes out- standing. / 3756. When taxes are delinquent, addition thereto of five joer cent. "*iT~^ Sec. 375G. On the first Monday in January of each year, at six o'clock p. m., all unpaid taxes are delinquent, and thereafter the tax collector must collect thereon, for the use of the county, an addition of five per cent. {Amendment, . approved January 12, 1876; Amendments 1^1 b-Q>, 60; took effect from passage. '-"^ 3757. (Sec. 3757*"' was repealed by act approved December 23, 1873; Amendments 1873-4, 160; took efl'ect immediately.] 3758. Comparison of original and duplicate assessment books by collector and auditor. -^ I Sec. 3758. On the third Monday in January of each year, in each of the counties other than San Francisco, and on the first Monday in February of eadi year ii) the city and county of San Francisco, the tax collector must attend at the office of the auditor, with the duplicate assessment book, and carefully comj)are the dui)licate with the original assessment book, and every item marked " paid" in the former must be marked " paid" in the latter. [Amend- vii'itt, ajtprovcd January 15, 1876; Amendments 1875-6, 60; took effect from paasage.^" , (See, in this connection, the time i)rescribed for publishing the delinquent list as prescribed, jjost 3764.] 3759. When delinquent list must be completed. Sec. 3751). The tax collector must, at the time specified in the preceding sec- tion, deliver to the auditor a complete "delinquent list" of all persons and proj)erty then owing taxes. 3760. All mnfterx on assessment book, etc., to be set down in numerical or alpha- betical order. Sj.i.. .'i760. In the list so delivered must Ijc sot down in numerical or alpha- {a)_ The nrlKlnal nectlon did ulace must be in front of the county com-t-house, or if in the city and county of San Francisco, in or in front of the tax collector's ofl&ce, for all state and county taxes, and for all other taxes in front of the tax collector's offices in their respective towns, cities and local districts. [Amendment, approved March IG, 187G; Amendments 1875-6, 62; took cjfectfrom passage.'^"^ 3769. Notice containing what to he filed toith county recorder. Sec. 37G9. The collector, as soon as he has made the publication required by sections 3764, 37G5, 37G6, and 37G7, must file with the county recorder and county clerk respectively, a copy of the publication, with an affidavit attached thereto that it is a true copy of the same; that the publication was made in a newspaper or supplement thereto, stating its name and place of publication, and the date of each appearance; and in case there was no newspaper published in his county, that notices were put up in three public places in each of the townships, designating the township and places therein, which affidavit is primary evidence of all the facts stated therein. 3770. Collector to collect an additional sum to defray costs, etc. — Sum, how collected. Sec 3770. The collector must collect, in addition to the taxes due on the delinquent list and five per centum added thereto, fifty cents on each lot, piece, or ti-act of land separately assessed, and on each assessment of personal prop- erty, one half of which must go to the county and the other to the collector in iuU for preparing the list. 3771. Manner of conducting sale. Sec. 3771. On the day fixed for the sale, or on some subsequent day to which he may have postponed it, of which he must give notice, the collector, between the hours of ten o'clock a. m. and three p. m., must commence the sale of the proi>erty aetically or in the numerical order of lots and blocks until completed. 3772. J'oHfponement. Sec 3772. Ho may postpone the day of commencing the sale, or the sale iroiu day to day; Init the sale must be completed within three weeks from the day first fixed. 3773. Oirucr of pruix-rtij may designate what portions to be sold first, etc. Sec. 3773. The owner or i)er.son in possession of any real estate offered for Bale for taxes due thereon, may designate, in writing, to the tax collector, prior to the sale, what portion of the property he wishes sold, if less than the whole; (a) Thcoriifinal goctlon did not have the last clauBe commencing with the words "foraU state and county taxes." 460 REVENUE. 3773-3780 but if the owner or the possessor does not, then the collector may designate it, and the person who will take the least ciuantity of tbe land, or in case an undi- vided interest is assessed, then the smallest portion of the interest, and pay the taxes and costs due, including fifty cents to the collector for the duplicate certificate of sale, is the purchaser. But in case there is no purchaser in good faith for the same, as provided in this chapter, on the first day that the property ! is ofl'ered for sale, then when the property is offered thereafter for sale, and there is no purchaser in good faith of the same, the whole amount of the prop- erty assessed shall he struck off to the people of the state as the purchaser, and the duplicate certificate delivered to the county treasurer and filed by him in his office. No charge shall be made for the duplicate certificate when the state is a purchaser; and in such case the tax collector shall make an entry, "Sold to the State," on the duplicate assessment book opposite the tax, and he shall be credited with the amount thereof in his settlement, made pursuant to sections 3797, 3798 and 3799 of this code. [Amejuhnent, approved March 24, 1874; Amendments 1873-4, 148; took effect from passage.''^'' 3774. When purchaser does not make payment on need day propei'fy to be resold. Sec. 3774. If the purchaser does not pay the taxes and costs before ten o'clock A. M. of the following day, the jnoperty, on the next sale day, before the regu- lar sale, must be resold for the taxes and costs. 3775. Bid of person once refusing to make payment not to he received. Sec. 3775. The bid of any person refusing to make the payment for property purchased by him must not be received on the sale of any property advertised in the delinquent list of that year. 3776. Collector to give purchaser duylicate certificate of sale. Sec 3776. After receiving the amount of the taxes and costs, the collector must make out in dujolicate a certificate, d^ted on the day of sale, sTating(when known) the name of the person assessed, a description of the land sold, ""the amount paid therefor, ^^that it was sold for taxes,^giving the amount and year of the assessment,, and specifying the time when the purchaser will be entitled to a deed. 3777. Delivery of certificate. Sec. 3777. The certificates must be signed by the collector, and one copy de- livered to the purchaser, and the other filed in the ofiS.ce of the county re- corder. 3778. Collector to enter in hook description of land sold, etc. Sec 3778. The collector, before delivering any certificate, must in a book enter a description of the land sold corresponding with the description in the certifi- cate, the date of sale, purchaser's name, and amount paid, regularly number the descriptions on the margin of the book, and put a corresponding number on each certificate. Such book must be open to public inspection without fee, dur- ing ofl&ce hours, when not in actual use. 3779. Lien of state vests in purchaser; hoio divested. Sec 3779. On filing the certificate with the county recorder the lien of the state vests in the purchaser, and is only divested by the payment to him, or to the county treasurer for his use, of the purchase-money and fifty per cent, thereon. 3780. Redemption, time for. v^ Sec 3780. A redemption of the property sold may be made by the owner, o^ < 7 ' (a) The original Bection consisted only of the first sentence. Instead of " fifty cents " it had the words " two dollars." 461 3780-3786 POLITICAL CODE. any party in interest, within twelve months from the date of the purchase. [Ameudmenf, approved January 13, 1876; Amendments 1875-6, 62; took effect im- inediatelif.'''" 3781. Coin. Sec. 3781. Redemption must be made in gold or silver coin, and when made to the county treasurer, he must credit the amount paid to the person named in the collector's certificate, and pay it on demand to the person or his assignees. [Amendment, approved JIarch 24, 1874; Amendments 1873-4, 157; took effect from poiiiiage.'^^' 3782. Ti-eaaurer to rqMrt to siipej'visors pp7\^ons entitled to redemption. Sec. 3782. In each rejioi-t the treasurer makes to the supervisors he must name tlie persons entitled to redemption money, and the amount due to each. 3783. liecorder to file certificate of sale. Sec. 3783. On receiving the certificate of sale the recorder must file it, and make an entry in a book similar to that recj[uired of the collector. 3784. Wlirn j)roperty redeemed, recorder to note in hook. Sec. 3784. On the presentation of the receij)t of the person named in the certificate, or of the county treasurer for his use, of the total amount of redemp- tion money, the recorder nuist mark the word "redeemed," the date, and by whom redeemed, on the certificate and in the margin of the book whei'e the entiy of the certificate is made. 3785. Deed given on failure to redeem. Sec. 3785. If the property is not redeemed within the time allowed by law for its redemption, the collector, or his successor in oflSce, must make to the jiun.'haser, or his assignee, a deed of the property, reciting in the deed sub- stantially the matters contained in the certificate, and that no person has re- deemed the property during the time allowed for its redemption. In counties where no fee for making said deeds is provided by law, the collector shall be entitled to receive from the purchaser three dollars for making such deed. No charge must be made by the collector for the making of any such deed where the state is the purchaser; and the acknowledgment of all of said deeds, as pro- vided in section 3773, shall be taken by the county clerk, free of charge. [Amendment, approved February 15, 1876; Amendments 1875-6, 62; took effect from paitaafje.^"^ 3786. lii^citals in deed primary evidence of what. Sec. 3786. The matters recited in the certificate of sale must be recited in the deed, and such deed, duly acknowledged or proved, is primary evidence that: 1. The property was assessed as required by law; 2. The property was equalized as required by law; 3. The taxes were levied in accordance with law; 4. The taxes were not paid; 5. At a i)roi)er tinie and place the property Avas sold as prescribed by law, and by the ])roper ofl&cer; 6. Tlie i)n>p(rty was not redeemed; lat The '.rlKliitil Bcctloii wan i\u; name an thr- amonfl- It wns previously ainentled bv act of March 24, 1874; IM,) Ih<- oriKlnal KPctlon did not have the clause deed of the prop rty, recltinj,' in the deed substantially comnicuclug with tli<- wordil "reserving two and a the naatters contaiiied in the certificate, and that no '"'^•" person redeemed tlic property during the time allowed (-•) The oriKlnnl »ectlon wafc like the following by law for its redemption; provided, that in counties amendment, .x.ept that it bad " tw.-lve " instead of where no fee in making siid deed is provided bv law, '• Rlx." It did not have the words " or Lis succcHSor in the c(dlector shall hit entitled to receive from the pur- offlce " nor the proviso. chaser three dollars lor making euch deed. 462 REVENUE. 378G-3790 7. The person "wlio executed the deed was the proper officer; 8. Where the real estate Avas sokl to pax taxes on personal property, tlmt the real estate belonged to the person liable to pay the tax, 3787. What recitals are conclusive evidence. Sec. 3787. Such deed, duly acknowledged or proved, is (except as against actual fraud) conclusive evidence of the regularity of all other proceedings, from the assessment by the assessor, incLusive, up to the execution of the deed. 3788. Deed conveys absolute title. Sec 3788. The deed conveys to the grantee the absolute title to the lands Yl described therein, free of all incumbrances, except when the land is owned by the United States or this state, in which case it is prima facie evidence of the right of possession. Deeds to the state, of_state lands sold for delinquent taxes, shall be recorded by the recorders of the several counties, as prescribed in section 3816 of this code, and a copj' of said deeds, duly certified by the county recorder and acknowledged before the county clerk, shall without delay be filed in the office of the surveyor-general, and thereupon the laud shall again become subject to entry and sale, in the same manner and subject to the same conditions as apply to other state lands of like character, except that the former possessors of lands thus deeded to the state, their heirs or assigns, shall be preferred purchasers thereof for three months after the deeds are filed with the surveyor-general as prescribed in this section, but the surveyor-general shall not permit an entry, nor make a sale of any lands thus deeded to the state, except upon the previous payment into the state treasury, in addition to the price of said land as compared with the price fixed for other state lands of a like character, by the person or persons proposing to make the entry or pur- chase, of a sum equal to the delinquent taxes, costs, and penalties, by virtue whereof the state became a purchaser of the lands thus sought to be entered or purchased. The money thus paid into the state treasury shall be distributed in the manner prescribed in section 3816 of this code. [Amendment, approved March 9, 1876; Amendments 1875-6, 63; took effect from passage.''^' 3789. Assessment hook, duplicate assessment book, delinquent list, prima facie evidence. Sec. 3789. The assessment book, duplicate assessment book, or delinquent list, or a copy thereof certified by the county auditor, showing unpaid taxes against any joerson or property, is prima facie evidence of the assessment, the property assessed, the delinquency, the amount of taxes due and unpaid, and that all the forms of law in relation to the assessment and levy of such taxes have been complied with. [Ainendmenf, approved March 24, 1874; Amendments 1873-4, 149; took effect from passage.'^'' 3790. Seizure and sale of personal property for taxes. Sec. 3790. The tax collector may, after the first Monday in Februaiy in each year, in each of the counties of this state, except in the city and county of San Francisco, and may, after the first Monday in March in each year, in said city and county of San Francisco, collect the taxes due on personal property, except when real estate is liable therefor, by seizure and sale of any personal property owned by the delinquent. [Ameyidment, approved Januanj 15, 1876; Amendments ISl 5-6, 61; took effect from passage.'''''' {a) The original section consisted of the first sen- (c) The original section did not have the words "in tence alone, with the exception that it had the word each of the counties ot this state, except lu the city " primary " instead of " prima facie." and county of San Francisco, and may after the first It was previously amended by act of March 30, 1874; Monday in March in each year lu said cti.v and county Amendments 187a-4, 54, bo as merely to change the of San Francisco." The amendatory act also nmn- Tvord " primary " into " prima facie." bered the section " 3704 ;" but such number seems 60 (b) The original section had the word " primary " plainly an error that the original numbering is re- instead of " prima facie." tained with this explanation. 463 u^^ H^l 3791-3801 POLITICAL CODE. 3791. Manner of conducting sale, elc. Sec. 3701. The sale must be at public auction, and of a sufficient amount of the property to pay the taxes, percentage, and costs. 3792. Samr. tJEC. 87i»'2. The sale must be made after one week's notice of the iime and place thereof, given by publication in a newspaper in the county, or by posting in three public places. 3793. Collrctor's charges for conducling sale and for seizure. Sec. 3793. For seizing or selling personal jDroperty, the tax collector may charge in each case the sum of three dollars, and the same mileage as is allowed by law to the sheiiff of the county. 3794. Tide to such property vests in purchaser on payment, etc. Sec. 3794. On payment of the price bid for any proj^erty sold, the delivery thereof, with a bill of sale, vests the title thereto in the jjurchaser. 3795. Excess of p)roceeds over taxes and costs returned to owner, etc. Sec. 3795. All excess over the taxes, per cent., and cost of the proceeds of any such sale, must be returned to the owner of the property sold, and until claimed must be deposited in the county treasury, subject to the order of the owner, heirs, or assigns. 3796. Unsold portion to he left at p)lace of sale at risk of owner. Sec 3796. The unsold portion of any j^roperty may be left at the place of sale at the risk of the owner. 3797. Final settlement of collector with auditor. Sec 3797. The tax collector must, annually, on the third Monday of March, attend at the office of the auditor with the delinquent list, and the auditor must then carefully compare the list with the assessments of persons and prop- erty not marked "paid" on the assessment book, and when taxes have been paid, must note the fact in the ai:)propriate column in the assessment book. 3798. Same. Sec 3798. The auditor must then administer to the tax collector an oath, to be >\Titten and subscribed in the delinquent list, that every person and all property assessed in the delinquent list on which taxes have been paid has been credited in the list with such payment. 3799. Same. Sec 3799. The auditor must then foot up the amount of taxes remaining unpaid, and credit the tax collector with the amount, and have a final settle- ment witli him; and the delinquent list must remain on file in the auditor's office. In the city and county of San Francisco the auditor must charge the collector with the amount due on such list, and must return to such collector the coi)y of the assessment book. {Amendment, approved April 3, 1876; Amend- mcnls 1875-6, 58; took ej/'eclfrom passage. '•"'> 3E00. Collector to make certain affidavit. Sec 3800. At the time mentioned in section 3797, the collector must make an affidavit, indorsed on the list, that the taxes not marked "Paid" have not been j)aid, and that he has not Ijcen able to discover any property belonging to, or in possession of, the persons liable to pay the same whereof to collect them. 3201. [Skc 3801"" was rei.calod by act approved March 24, 1874; Amendments 1873-4, 150; to(jk eflect from passage.] (n) Th<- original Ktctlon conslHttd of the first sen- must be filed by the imditor with the clerk of the board tenc-e alone. of supcrviKors, itnd the boiird may canL-el all taxes ('<) Kf-ptab-d Bcctlnn: which in its opinion cannot be collected, and return Bec. abOl. A hlateuicnt of the amount of unpaid taxes the statement to the auditor. 464 EEVENUE. 3802-3811 3802. [Sec. 3802'*> was repealed by act approved April 3, 187G; Amendments 1875-6, 58; took effect from passage.] 3803. Bate of interest on delinquent faxes. Sec. 3803. Interest at the rate of two per cent, per month must be collected on such delinquent taxes from the time they were first delinquent until paid. 3804. Taxes, etc., illegally collected to be refunded. ^^ ^ Sec. 3804. Any taxes, per centum and costs erroneously or illegally collected, / may by the order of the board of supervisors, be refunded by the county treasurer. 3805. When land assessed more than once. Sec. 3805. When the collector discovers that any propei'ty has been assessed more than once for the same 3'ear, he must collect onl}' the tax justly due, and make return of the facts under affidavit to the county auditor, 3806. Land irregularly assessed, etc. , not to be sold. Sec. 3806. If the collector discovei's before the sale that on account of irreg- ular assessment, or of any other error, any land ought not to be sold, he must not offer the same for sale; and the board of supervisors must cause the assessor to enter the uncollected taxes upon the assessment book of the next succeeding year, to be collected as other taxes entei-ed thereon. 3807. What viistakes do not affect sale of j)roperty for taxes. Sec. 3807. When land is sold for taxes correctly imposed as the property of a particular person, no misnomer of the owner, or supjDosed owner, or other mis- take relating to the ownership) thereof, affects the sale, or renders it void or voidable, 3808. Collection of taxes from joersons removed to another county. Sec. 3808. If any person removes from one county to another, after being assessed on personal proj^erty, the collector of the county in which he was assessed may employ an attorney to sue for and collect the same in the asses- sor's name. 3809. Same. Sec. 3809. On the trial a certified copy of the assessment, signed by the aud- itor of the county where the same was made, with the affidavit of the collector thereto attached, that the tax has not been paid, describing it as on the assess- ment book or delinquent list, is primary evidence that such tax and the i^er centum is due, and entitles him to judgment, unless the defendant proves that the tax was paid. 3810. Expenses of such proceeding, how jMid. Sec. 3810. The treasurer and auditor must allow the expenses of collecting such tax, and permit a deduction thereof from the amount collected, if they do not exceed one third of the amount of the tax collected. 3811. Validity of sale— Protest. Sec. 3811. Whenever property is advertised for sale for the non-payment of delinquent taxes, and the assessment is valid in part and void for the excess, the sale shall not for that cause be deemed invalid, nor any grant subsequently made thereunder be held to be insufficient to pass a title to the grantee, unless the owner of the jn-operty, or his agent, shall, not less than six days before the time at which the property is advertised to be sold, deliver to the tax collector a protest, in writing, signed by the respective owner or agent, specifying the portion of the tax which he claims to be invalid, and the grounds upon which such claim is based. [Neio section, approved March 24, 1874; Amendments 1873-4, 150; took effect from passage. (a) Repealed section: the auditor on the asBCBsment book of each succeeding Sec. 3802. All taxes not canceled must be entered by year, until paid. 30 465 3812-3816 POLITICAL CODE. 3812. DuUj of tax coUector-on receiving protest. Sec. 3812. In case any owner of propert}', advertised to be sold for delinquent taxes, shall, at least six days before the time advertised for the sale to take l^lace' deliver to the tax collector his protest in writing- against such sale, signed bv himself or his agent, claiming that the assessment is void in whole or in part— and if in part only, for what portion, and in either case specifying the grounds upon which such claim is founded— it shall be the duty of the tax collector, either: 1. To sell the property assessed for the whole amount appearing upon the duplicate assessmeut book; or, 2. AVithdraw the property from sale, and report the case to the state board of equalization for its direction in the premises; and in such case the board of equalization may either direct the foreclosure of the lien of such tax by action, which proceeding is hereby authorized to be had, or direct the collector to pro- ceed with the sale. [New section, approved March 2-4, 1874; Amendments, 1873-4, 150; touk effect from passage. • 3813. Assessment and sale of property purchased hy state. Six-. 3813. In case property assessed for taxes is purchased by the state, pur- suant to the provisions of section 3773 of this code, it shall be assessed the next vear for taxes in the same manner as if it had not been so purchased. But it shall not be exposed for sale; and the sale thereof, under such assessment, shall be adjourned until the time of redemption, under the previous sale, shall have expired. [New section, approved March 24, 1874; Amendments 1873-4, 150; took effect from passage. 3814. No sale unless directed by board of equalization. Sec. 3814. In case an assessment is made under the provisions of section 3813 of this code, and the lands are not redeemed from a previous sale had under section 3773, as provided by law, no sale shall be had under the assessment authorized by said section 3813, unless directed by the state board of equaliza- tion. [Xew section, approved March 24, 1874; Amendments 1873-4, 150; took effect from passage. 3815. Ih'demption of propjerty sold to state. Sec. 3815. In case property is sold to the state as purchaser, pursuant to section 3773 of this code, and is subsequently assessed pursuant to section 3810 of this code, no person shall be permitted to redeem from such sale, except upon payment also of the amount of such subsequent assessment, cost, fees, and interest. [New section, approved March 24, 1874; Amendments 1873-4, 150; look el/ect from passage. 3816. .Moneys received, how distributed. •(xiT Skc 3S10. ^Vhonover pro[)erty sold to the state, pursuant to the provisions u Massage. 4GG ^^/9 REVENUE. 3820-381^.9 CHAPTER VIII. COLLECTION OF TAXES BY THE ASSESSOR ON CERTAIN PERSONAL PROPERTY. 3820. W]ie)x taxes on personal properly invst be collected by assessor. Sec. 3820. The assessor must collect the taxes on all jiersoiial lu'operty wlien, in liis opinion, said taxes are not a lien upon real pro])erty sufficient to secure the jDayment of the taxes; provided, that in the city and county of San Fran- cisco the tax collector shall collect such taxes at any time after the assessment. [Amendment, approved 2Iarch 24, 1874; Amendments 1873-4, 152; took effect from passage. .'■"^ 3S21. Assessor may collect such taxes by seizure and sale. Sec. 3821. In the case provided for in the i^receding section at the time of making the assessment, or at any time before the first Mondaj^ of July, the assessor may collect the taxes by seizure and sale of any personal property owned by the person against whom the tax is assessed. 3822. Mode of conducting such seizure and sale. Sec. 3822. The provisions of sections 3791, 3792, 3793, 3794, 3795, and 3796 apply to such seizure and sale. 3823. Amounts to be collected, hoiv determined. Sec. 3823. The assessor and collector are governed, as to the amount of taxes to be by him collected on personal property, by the state and county rate of the previous year. [Aviendmenf, approved March 24, 1874; Amendments 1873-4, 152; took effect from passage.'-^'' 3824. When excess of rate has been charged, such excess to be returned. Sec. 3824. When the rate is fixed for the year in which such collection is made, then if a sum in excess of the rate has been collected, the excess must be repaid to the person from whom the collection was made, or to his assignee. 3825. When less than the rate has been charged, etc. Sec. 3825. If a sum less than the rate fixed has been collected, the deficiency must be collected as other taxes on personal property are collected. 3826. Monthly settlement of assessor with auditor. Sec 3826. The assessor, on the first Mondaj^ of each month, must make a settlement with the aviditor, and must pay into the county treasury all moneys collected by him for such taxes during the preceding month, less the compen- sation allowed him for making such collection. £827. Auditor to note in assessment book amount of taxes paid. Sec. 3827. The auditor must, as soon as the " assessment book " for the year comes into his hands, note opposite the names of each person from whom taxes have been collected the amount thereof. 3828. Auditor to note excesses or deficiencies in taxes paid. Sec. 3828. As soon as the rate of taxation for the year is fixed, the auditor must note, in connection with the entry made under the provisions of the pre- ceding section, the amount of the excess or deficiency. 3829. Compensation of assessor for collecting. Sec. 3829. For services rendered in the collection of taxes, the assessor shall receive one per cent, on the amount by him collected; provided, that all fees or commissions collected under this or any other act by the salaried officers in (a) Original section: ('') The original section instead of "and collector Sec. 3S.;0. The assessor must collect the taxes on are "had the word "is," and instead of " personal" it movable personal property when such taxes are not a had the word " movable." lien upon real property. 467 3829-3841 POLITICAL CODE. and for the city and county of San Francisco, shall be by said officers paid into the county treasury for the use of said city and county. [Amendment, ap- proved March 24, 1874; Amendments 1873-4, 153; took effect from passage}"'' 3830. Present incumbents to collect. Sec. 3830. In every county in this state where any officer other than the asses.sor is charged with the collection of taxes upon personal property not a lieu upon real property, such officer must, until after the expiration of the term of the present incumbent, discharge the duties cast upon the assessor under the provisions of this chapter, [Neio section, approved March 27, 1872; 1871-2, 58G; tooL- c(f'ectfrom passage. CHAPTER IX. POLL TAXES. 3839. Persons liable to poll fax. Stc. 3839. Every male inhabitant of this state, over twenty-one and under sixty years of age, must annually pay a poll tax of two dollars; provided, the same be paid between the first Monday in March and the first Monday in July; but if not i)aid prior to the first Monday in July, then it shall be three dollars. [Amendment, approved March 30, 1874; Amendments 1873-4, IGl; took effect immediately.''^^ An .\ct to exempt firemen in Nevada, Placer, El Dorado, Alameda, aud Siskiyou counties from the paj'ment of poll tax. Approved March 27, 1874; 1873-4, 731. [This act, which provided for the exemption of active members of unpaid fire companies, organized in pursuance of the ordinances of the incorporated cities, towns, and villages of Nevada, Placer, El Dorado, Alameda, Santa Clara, Solano, Sonoma, and Siskiyou counties, was repealed by act approved March 15, 187G; 1875-G, 287; took effect from passage.} .\n Act to authorize the board of su])ervisors of Santa Clara county to exempt firemen from the payment of poll taxes for county purposes. Approved March 30, 1874; 1873-4, 825. Firemen in Santa Clara county. Skction 1. The board of supervisors of the county of Santa Clara are hereby authoiized to i)ass an order relieving all active firemen in said county from payment of any aud all poll taxes for county purposes. Si.c. 2. This act shall take effect from and after its jmssage. 3840. Poll lax to be collected, ivhen. Sec. 3840. Poll tax must be collected by the assessors between the first Mon- day in March and the second Monday in January of the ensuing year. [Amend- ment, ujiproved March 30, 1874; Amendments 1873-4, IGl; took effect imme- dial'ly."' 3841. Coiaitij treasurer to have blank poll tax receipts printed. Skc. 384L The county treasurer must, before the first Monday of March and tlio first Monday in July of each year, cause to be printed, respectively, of two and three dollars Idank poll tax receijits, a sufficient number for the use of the assessor. [Amendment, apjjroved March 30, 1874; Amendments 1873-4, 161; look effect immediately."^^ (a) OriKlnaUortlon: (r) The oriRlnal section after the words " between Hr.r. -.itsTJ. Por K(T\iec8 rc-ndcrod In thf^ collection of the " proceeded uk follows: " sccoiid Monday in Janu- dcliiiqueiit taxes the aswHUor iiiUHt receive the same uo' and the second Monday of October in each year." coiriiieriHdtloii as Is allowed by law U> the tax collector (roperty. Sec 3846. The assessor must demand payment of poll tax of eveiy person liable therefor, and on the neglect or refusal of such person to pay the same, he must collect by seizure and sale of any personal property owned by such person. [Amendment, approved March 30, 1874; Amendments 1873-4, 162; took effect immediately .'-"'> 3847. Seizure and sale, how conducted. Sec 3847. The sale may be made after three hours' verbal notice of time and place, and the provisions of sections 3791, 3793, 3794, 3795 and 3796 apply to such seizure and sale. [Amendment, ^approved March 30, 1874; Amendments 1873-4, 162; look effect immediately. ^"^^ 3848. Debtors of persons owing poll tax to pay poll tax for such persons. Sec 3848. Every person indebted to one who neglects or refuses^ after demand, to pay a poll tax, becomes liable therefor, and must pay the same for such other person after service upon him by the collector of a notice in writing, stating the name of such person. 3849. Who are debtors under the preceding section. Sec 3849. Every officer authorized to draw the warrants for or to pay the salary or fees of any officer is the debtor of such officer within the meaning of the preceding section. 3850. Debtor may charge his creditor for such poll tax paid. Sec 3850. Every person paying the poll tax of another may deduct the same from any indebtedness to such other person. (a) The original section did not have the words "At ( c) Origina^ section: ^^^^ the time of signing" in the second subdivision. The Sec. 3t(4b ihe ''JsesBor may ^"i'^", / j „f ^uy first clause and the first subdivision were as follows: any person liabe "'^^^f.^^^J^^.'iJ'''/^..^"'^ ^"'^ "''^ Sec. 3843. The treasurer must, before the second personal property o«ued bj such perton. Monday in January of each year: W "^^f^^'IpheVrovislons of sections 3791. 3792.3793, 6) OnSrsectkmr 3794 ^795, and 379G, apply to such seizure and sale. Sec. 384.5. He must at anytime after the second Mon- day in January, upon demand, deliver such blanks to the county assessor and charge him therewith. 469 3851-3859 POLITICAL CODE. 3851. Il'veipt for poll tax delivered to purchaser of property sold for such tax. Sec. 3851. The assessor must deliver the poll tax receipt, filled out with the name of the person owing the taxes, to the purchaser of property at any such sale; in other cases he must deliver it, tilled out in like manner, to the person paying the tax. 3852. lieceijit only evidence of payment. Sec. 3852. The receipt so delivered is the only evidence of payment. 3853. Monthly settlevient of aasessor with auditor for poll taxes. Sec. 3853. On the first Monday in each month the assessor must make oath, before the auditor, of the total amount of poll taxes collected by him during the last preceding month, and must, at the same time, settle Avith the auditor for the same, and pay into the county treasurer's office the total amount of poll taxes collected, less the per centum allowed for fees. 3854. A.-'.ro- vided, that no person shall be returned as delinquent on such roll unless a i)er- soual demand has been made upon him. [Amendment, approved March 30, 1874; Amriidinnits 1873-4, 1G3; tooL effect immediately.'^^'' 3858. Such roll to be rcjumed to auditor. Sec. 3858. On the second Monday in January of each year the assessor must deliver to the auditor the roll so made up, and the auditor must add to the total i»o]l tax deliiKpient on such roll thirty -three and one third per centum additional, and without delay deliver such hst to the tax collector, and charge tiie collector therewith. [Amendment, approved March 30, 1874; Amendments 1873-4, 1G3; ti,olc effect immediately.'"'' S859. ISkc. 3851)"" was rei)raled by act approved March 30, 1874; Amend- ments 1873-4, 1G4; took eflect immediately.] ('II OriKlimlwctloii: (j) Original hc.tim: hKC .tKM. On th.- wrofxl Mondiiy In OrtoWr tho 8ko. asr.H. On the Kccond Monday in Ottober in each •JMMMK.r jiiuKt r. turn U, tlir ■n.lit<.r nil i.oll t..x r-.-cipts y. The assessor, for scr%-ices rendered in the cent, in addition thereto, constitutet; from the second collection of poll taxes, must receive the same conipen- Monday in October a lien upon the property assessed sation as is allowed by law to tax collectors or aseessors to such per.-on, and must be collected in the same for similar purposes, manner and at the same time as taxes upon his prop- erty are collected, 471 38GG-3874 POLITICAL CODE. which hixve come iuto their hands as county treasurers before the close of busi- ness at the end of the previous month. If sufficient j^ropei-ty tax has not been reported by the auditor to pay all charges and commissions allowed by law, the controller shall defer the settlement until the next regular settlement. No mileage shall be allowed any treasurer for any deferred settlement. [Amend- ment, appi-oved March 30, 18TG; Amendmenis 1875-G, G4:; took ejj'ect sixtieth day after passage.^*^ 3867. Trea.ni7-e7-s neglecting to settle; penalty. Stc. 38G7. Every county treasurer who neglects or refuses to appear at the office of the controller and treasurer at the times specified in this chapter, and then and there to settle and make payment as required by this chapter, forfeits all fees, percentage, and mileage which would have otherwise been due him on such settlement; and the controller is required to withhold all such fees, per- centage, and mileage, and require the same to be paid into the treasury for the use and benefit of the state. 3868. Settlement of county auditors loitli controller. Sec. 38G8. The auditor of each county, between the first and fifteenth day of each month in which the treasurer of his county is required to settle with the controller, must make in duplicate and verify by his affidavit a rejDortto the con- troller of state, showing specifically the amount dup the state from each partic- ular source of revenue at the close of business on the last day of the preceding mouth. 3869. Auditor to transmit report to controller by mail. Skc. 38G9. The auditor must at once transmit by mail or express to the controller one copy of the report, and must deliver the other copy to the treasurer of his county. 3870. Failure of auditor to make report; penalty. Sec. 3870. Ever}- auditor who fails to make and transmit the report required by this chapter, or any report or statement required by this title, forfeits all com- pensation Avhich would be otherwise due him from the state; and the controller is required to withhold such compensation. 3871. Controller to deduct fees and mileage, etc., on settlement. Sec 3871. In the settlement the controller must deduct the commissions and mileage allowed to the county treasurer for his services, the state's portion of the repayments made under section 3824:, and any other amount due the county or the officers thereof. 3872. Manner of making payments into state treasury. Skc. 3872. The manner of making payments into the state treasury is pre- scribed by sections 433, 434, 452, and 453 of this code. 3873. C'ndrolh'r'x statement to contain what. Si-c. 3873. The controller must, after the treasurer has made settlement and payment, enter upon each copy of the auditor's report a statement showing: 1. The amount of money by the county treasurer paid into the state treasury; 2. The amount deducted for commissions and other allowances; — And must then return one copy of the report to the county treasurer. 3874. f'oiinly treasurer to fie controller's statement with auditor. Sj;< . .'{874. The county treasurer must file with the auditor of his county the copy returned to him by the (;oiitroller. (>o received as prima itui'ia evidence of the contents thereof. Sxiitn. Sec. 10. All suits now pending in the district, county, or probate courts, of 480 COUNTIES. 3910 Xlnmatli county, shall be transferred, by the order of the jndf^e thereof, to the district, county, and probate courts of tlie counties of Humboldt or Siskiyou. Board of commissioners. Sec, 11. There shall be a board of commissioners, to consist of four persons, electors, two of whom shall be ajipointed by the board of suptTvisors of Hum- boldt county, and two by the board of supervisors of Siskiyou, who shall have and execute the powers conferred by section six of this act. Each county shall j)ay its own commissioners such sums as the board of suiDervisors shall deem just. Sale of county property. Sec. 12. The board of supervisoi's of Klamath county must sell at auction, to the highest bidder or bidders, for cash, and within thirty days after the api:»ointment of the commissioners provided for in section eleven of this act, all the county property of said Klamath county, both real and joersonal; and the board of supervisors of said county, upon the sale of any real estate by authority of this .section, is hereby authorized and empowered to make, execute, and deliver, in their official capacity, the necessary conveyances for such real estate. The money arising from the sale of said property must be applied by said board of sui^ervisors of said Klamath county to the joayment of the indebtedness of the county. Assessment lists. Sec. 13. The assessor and auditor of Klamath county must meet immediately on the aimexation of the territory composing said county to the counties of Humboldt and Siskiyou, transmit the assessment lists containing the assess- ment of the property of the county for the revenue year eighteen hundred and seventy-four-five, and all books and papers in their possession pertaining thereto, to the county auditors of the counties of Humboldt and Siskiyou; the assessment lists containing the assessment of the property in the part of Klamath county annexed to Humboldt county, and the other papers and books pertain- ing thereto, to the county auditor of said count}', and the assessment lists con- taining the assessment of the property in the part of Klamath covinty annexed to Siskiyou county, and the other papers and books pertaining thereto, to the county auditor of said county. Said assessor and auditor must certify under oath to the genuineness of all paj)ers transmitted under the provisions of this section; and the assessment of the property of Klamath county for the revenue year eighteen hundred and seventy-four-five, made by the assessor of said county and transmitted to the auditors of Humboldt and Siskiyou counties respectively, as provided in this section, shall be as valid as if made by the assessors of said counties respectively. Compensation. Sec. 14. The board of supervisors of Siskiyou county must allow the county clerk of said county, for the services he may perform in connection with the election herein provided for, such compensation as they shall deem proper and just, and the sums they may allow shall be in addition to the fees and compen- sations the clerk is allowed by law to approj^riate to his own use. Salary. ' " Sec 15. In the event of the annexation of any portion of the teiiitoiy of the new county of Klamath to the county of Humboldt, as provided by this act, the assessor of the county of Humboldt shall, in addition to the salary and fees now allowed by law, receive the sum of six hundred dollars per annum, after the first Monday in March, a. d. eighteen hundred and seventy-five. Sec. 16. This act shall take effect and be in force from and after its passage. 31 481 3910 POLITICAL CODE. An Act amendatory of ami supplementary to the foregoing net of March 28, 1874. Approved March 31, 1876; 1875-6, 603. Supervisors io appoint commissioners; same, jvhen to meet. Section 1. The board of supervisors of the counties of Humbohlt and Siski- you are directed, at their first regular meetings of said board after the passage of this act, to appoint tAvo commissioners each, as provided in section eleven of the act to whicli tliis act is amendatory and supplementary, whose duty it shall be to meet at Orleans bar on the fifth day of June, a. d. eighteen hundred and seveutv-six, and do and perform all duties required of them by the provisions of thi.s act and the act to which this is amendatory and supplementary, not inconsistent with the provisions of this act; provided, that if the commissioners of either of said counties fail to meet as herein provided, and the commissioners from the other county shall be in attendance at said time and place, then the county being in default shall pay to the county not so in default all expenses incurred by reason thereof. When failure io agree. Skc. 2. If said commissioners fail to agree, they shall at once choose some disinterested person, who shall cast the deciding vote upon such matters as to which they shall so fail to agree; provided, that if said commissioners fail to agree as to the person herein authorized to be chosen, they shall certify the fact to the district judge of the eighth judicial district, who shall appoint another commissioner, who shall cast the deciding vote as aforesaid; and pro- \-ided that if said commissioners shall, from any cause, fail to meet as herein provided, they shall then meet on the succeeding second Monday of August, A. D. eighteen hundred and seventy-six, unless a shorter [time] be agreed upon by the boards of said counties. Commissioners to sell county property. Sec. 3. The commissioners must sell at auction, to the highest bidder or bidders, for cash, all of the county projDerty of the said Klamath county, both personal and real, as soon after their meeting and organizing as they shall deem expedient, and they are hereby authorized and empowered, in their official cajiacity, to execute deeds and bills of sale for all property so sold, which shiJl in all ret>pects be a valid conveyance thereof. I'rcnsurfr of Ktarna/li to pay over mon(.n/s. Sec. 4. P. W. "Wasmuth, the treasurer of Klamath county, shall, upon the meeting and organizing of the commission herein provided, make an exhibit of the amount of all moneys and property in his custody or under his control as such treasurer, to said commissioners, also of all outstanding and bona fide indebttdness of said Klamath county. Such exhibit shall be by said P. "W. "NVahmutli fullj- explained to the commissioners, and they may examine tliesaid P. W. AVasmuth, or any otlier person or persons, on oath, or the books or papers, touching any or all of said matters. Said commissioners shall there- upon proceed to ascertain the amount of moneys belonging to Klamath county which is in tlje jiosscHsion or under the control of said P. W. Wasmulh. The commiKi^ioners shall allow to P. "\V. Wasmuth two per cent, on all moneys he niaj- have in his possession belonging to said Klamath county, as full compen- Bation for all services jierformed by him as treasurer of said county. P. W. "NVasmuth is liereby ordered to jiay over to said commissioners, upon their receipt, all of said moneys, less the amount allowed hj the said commissioners a« herein provided. A}qx)rtioiane.nl of indehiedneas. Sec. o. Said commissioners shall ascertain and apportion the assets of said Klamath county in the same manner as provided for the apportionment of the 482 COUNTIES. 3910-3011 indebtedness of said conntj^ in section six of the act to wlilcli this act is amen- datory and supi^lementary. The commissioners shall pay over to the county treasurer of their respective counties the sums so apportioned, Avhich shall be set apart by the said counties for the payment of the principal and interest of said assumed indebtedness of Klamath county. Transfer of actions, records, etc., to Humboldt rouvty. Sec. 6. All suits and proceedings, of whatever kind or nature, now or at any time pending in the district, county or probate courts of Klamath county, and all suits, judgments, orders, and proceedings, of whatever kind or nature, heretofore at any time had or determined in or by any of said courts, which have not been already transferred to some other county, are hereby transferred to the appropriate courts of Humboldt county, which last-named courts shall have the same and as ample jurisdiction thereof as if such suits and proceedings had been oi'iginally commenced and such judgments and orders had been originally made in said courts; and all of the records of said courts not hereto- fore transferred to some other court, shall be delivered to the county clerk of Humboldt county by the present custodians thereof; and the clerk of Humboldt county shall have the same power and perform the same duties touching all suits, judgments, orders, and jjroeeedings originally had in said courts of Humboldt count3\ AllovMnce to assessor of Klamath. Sec. 7. The board of supervisors of Humboldt county and the board of super- visors of Siskiyou county shall allow J. Nally, the assessor of Klamath county, such sums as he shall be entitled to for services performed in assessing the territory of Klamath county, during the years a. d. eigliteen hundred and seventy-four and five, and the commissioners herein provided for shall certify to their respective boards of supervisors such amount as, in their judgment, they shall find the said assessor entitled to; provided, that the suras so allowed by the said board of supervisors shall not exceed in the aggregate the salar}' allowed by law to said assessors for any one year. Sec. 8. The said commissioners are hereby authorized and fully empowered to do all acts necessary to carry into effect the provisions of this act, and the act to which this is supplementary and amendatory. Supervisors of Humboldt and Siskiyou to levy tax. Sec. 9. Section seven of the act to which this is amendatory and supple- mentary is amended to read as follows: Section 7. The board of supervisors of Humboldt, and the board of supervisors of Siskiyou, each is hereby authorized to levy a tax upon the taxable property of the county, not exceeding ten cents nor less than five cents on each one hundred dollars value per annum, for the purpose of paying the indebtedness assumed under this act. The said tax shall be assessed, levied, and collected at the same time, in the same manner, and by the same officers as other county taxes are assessed, levied, and collected. The funds raised by such tax shall be set apart and used by said respective boards of supervisors only for the payment of the principal and interest of said assumed indebtedness. Sec 10. All provisions in the act to which this is amendatory and supple- mentary, in conflict with the provisions of this act, are hereby repealed, so far as they are in conflict. Sec 11. This act shall take effect from and after its passage. SHASTA. 3911. Shasta. Sec. 3911. Beginning at the northern line of Tehama, at the head of Bloody island, in Sacramento river; thence to and down the eastern '-hannel to the 483 3911-3912 POLITICAL CODE. mouth of Battle creek; thence easterly, up Battle creek, hy the main channel, to the mouth of the Middle Fork, known as Digger creek; thence up Digger creek to its head; thence east to a point south of Black Butte mountain, form- iucr southeast corner; thence north, on western line of Lassen, to a rock mound, forming noi-theast corner, on southern line of Siskiyou; thence west, on said southern line, to Castle rock, forming northwest corner; thence southerly along Trinity mountain to the head of Bee Gum creek, forming southwest corner; thence easterly down Bee Gum, Middle Fork, and Cottonwood creeks to the western channel of Sacramento river; thence, by direct line, to the point of beginning. County seat — Shasta city. LASSEN. 3912. Lassen. Sec. 3912. Beginning at southwest corner, on the northern line of Sierra, as e.sitablished in section 3921, at a point on the summit of the ridge which crosses said line, and which divides Long valley from Sierra valley; thence northwes- terlv, following said ridge, to a point due south from the town of Susanville; thence westerly, along the ridge separating the waters which flow into the east l)ranch of the north fork of Feather river, ranning through Indian valley, from those which flow into the north fork of Feather river, running through Moun- tain meadows, to a point on said ridge south from the point where the old and present traveled road from the Big meadows, via Hamilton's ranch, first crosses the said north fork; thence north, to a point east of the southeast corner of Shasta; thence west, along said extension line, to a point due south of Black Butte mountain, being southeast corner of Shasta; thence north, to a point on south- ern line of Siskiyou marked b}' a rock mound, being northwest corner of Lassen and northeast corner of Shasta; thence east, along said line, to the eastern bound- ary of the state; thence south, along said state line, to the northeast corner of Sierra, as established in section 3921; thence west, along the line of Sierra, to the jilace of beginning. County seat — Susanville. All .\ct providing for the survey of tbe line forming a portion of the southern boundary of Siskiyou county and the northern boundary of Lassen coirnty. Approved April 1, 1872; 1872-2, 88G. S iiryt^jor-f/i'jiei'al lo survey and locate line. Section 1. The surveyor-general is hereby directed to survey and locate that portion of the southern boundary-line of the county of Siskiyou, commencing at a point known as the Devil's Castle, near and on the opposite side from Soda Springs, on the upper Sacramento river, and running from said point due east, to the eastern boundary of the State of California, and shall plainly de.signate said line by suitable monuments, and describe the same upon the maps of state, in accordance with the several acts of the legislature of the State of California, defining the northern Ijoundary of the county of Lassen and that portion of the Bouthern bound:iry of tlie county of Siskiyou above described. Erj)enni'H. Sec. 2. The nc-ccssiiiy expenses of such survey and location of said line shall be paid by the State ui California, out of the general fund thereof, to the sur- veyor-general, upon his liliiig in the office of the state controller, his certificate that such survey is completed according to law, together with his claim, setting forth tbe items of expense of such survey; provided, that the total expense of audi survey shall not exceed the sum of twenty-five hundred dollars; and the sum of twenty-five hundred dollars is hereby appropriated for the payment of the expenses of such survey. Sec. 3. Tliis act sliall take effect from and after its passage. 48-1 COUNTIES. 3913 SISKIYOU. 3913. SisJciyou. Sec. 3913. Begiuiiiug- at southwest corner, being common corner of Trinity, Klamath, and Siskiyou, as established in section 3910; thence easterly, on northern line of Trinity, to northwest corner of Shasta, as established in section 3911; thence east, on northern line of Shasta and Lassen, to western line of the State of Nevada; thence north, on the line of said state, to the southern line of the State of Oregon; thence west, on Oregon line, to the northeast corner of Del Norte, as established in section 3909; thence southeasterly, on the eastern lines of Del Norte and Klamath, as established in sections 3909 and 3910, to the place of beginning. County seat — Yreka. [See also act of March 28, 1874, as to partitioning of Klamath county, between Siskiyou and Humboldt counties, ante, 3910. The county of Siskiyou was divided, and the new county of Modoc created out of the eastern portion, by the following act.] MODOC. An Act to create tlie county of Modoc, to establish tlie boundaries thereof, and to jjrovide for its organization. Approved, February 17, 1874 ; 1873-t, 124. Modoc county. Section 1. There shall be formed out of the eastern part of Siskiyou count}-, a new county, to be called Modoc. Boimda7'ies. Sec. 2. The boundaries of Modoc county shall be as follows: Commencing at the northeast corner of the State of California; thence west, along the northern boundary-line of said state, to the range line between Ranges Nos. Four (4) and Five (5) east, of Mount Diablo base and meridian; thence due south, on said range line, to the southern boundary -line of Siskiyou county; thence east along said southern boundary-line, to the state line; and thence north to the jjlace of beginning. County seat. Sec. 3. The seat of justice shall be at the town of Dorrisbridge, until other- wise provided by law. Appointment of county judge — Salary — Terms of county and probate courts. Sec. 4. The governor of this state shall, when this act takes efl'ect, apj^oint some suitable j^erson, resident of Modoc county, to act as county judge, who shall reside at the county seat, and whose term of office shall continue until the fii'st day of January, a. d. eighteen hundred and seventy-six, and until his suc- cessor is elected and qualified. The county judge shall receive a salary of one thousand dollars per annum, to be paid quarterly, and shall hold the courts re- quired by law to be held by county judges. There shall be three regular terms of the county court held in each year, said terms to commence on the tirst Monday in February, June, and October; i)rovided, however, the county judge shall call and hold special terms of the probate court whenever public necessity may require. Said county judge shall discharge all the duties required by law of county judges in this state. Election of officers — Terms of office. Sec. 5. An election shall be held in said Modoc county within sixty days from the time of the first meeting of the commissioners in this act provided for. At said election there shall be chosen by the qualified voters of said county one dis- trict attorney, one county clerk, who shall be ex officio auditor, recorder, and clerk of the board of supervisors, board of equahzation, and board of canvas- 485 3913 POLITICAL CODE. sei-s; one county superintendent of public schools, one sheriff, who shall be ex officio county tax collector, one county assessor, one county treasurer, one county surveyor, one county coroner, who shall be ex officio public administrator. Said county officei-s shall hold their respective offices until the first Monday of March, .K. D. eighteen hundred and seventy-six, and until their successors are elected and quahfied. At said election there shall be chosen one supervisor for each super- visor district in said county, who shall hold their offices as follows: District number one, until the first Monday of November, a. d. eighteen hundred and seventy-four; District number two, until the first Monday of November, a. d. ei<,diteen hundred and seventy-five; and District Number Three, until the first Monday of November, a. d. eighteen hundred and seventy-six. At said election there shall be chosen two constables and two justices of the peace for each town- ship; provided, however, that all constables and justices and road overseers elected at tiie general and judicial elections held in the year a. d. eighteen hun- dred and seventy-three, residents of Modoc county, shall hold their offices for the time provided by law, upon having duly qualified as township officers of Modoc county for the respective townships in 'which they reside, as said town- ships are organized by the action of the board of commissioners, provided for by this act. At said election the qualified electors of said county shall vote for a place for county seat, and, a majority of all the votes cast shall be necessaiy to locate the same; and until the county seat is located, by a vote of the qualified electors, the board of supervisors of said Modoc county are hereby prohibited from incurring any indebtedness for the erection of county buildings in said county. For the purposes of this election the county clerk of Siskiyou county shall furnish each election precinct established by the board of commissioners of Modoc county with two (2) copies of the great register of Siskiyou county, printed for the general election held in said county in the year eighteen hundred and seventy-three; and, if necessary, said county clerk is hereby authorized to take said copies from the election returns now on file in his office. Jiuard (if comm iasioners. Sec. G. The governor shall, when this act takes effect, appoint five persons, residents of !Modoc county, who shall be and constitute a board of commis- sioners to i^erfect the organization of said county, a majority of whom shall constitute a quorum. Said commissioners shall meet at the county seat within twenty days after their appointment, and, after being duly sworn to faithfully discharge their duties, as i:»rescril)ed in this act, shall organize, by electing from their number a president and clerk. They shall then divide said county into townships, define their boundaries, and designate the name of each. They Khali also divide said county by townships into three supervisor districts, and number the same. They shall also establish election precincts, and appoint one inspector and two judges of electit)n for each precinct in said couuty. They shall give thirty days' notice, by proclamation in some newspaper published in Modoc county, or if there be no newspaper published in Modoc county, then Riiid publication to be made in 80)ue newspaper published in the county of Siskiyou, of tlie officei-s to be elected, the precincts established, with their unmi'H and boundaries, the officers of election of each precinct, and the nuinljer and boundaries of each supervisor district. Said commissioners shall, on tlie second Monday after said election, meet at the county seat as a board of canvassers, and ])roceed to canvass the election returns. Said commissioners, tlieir i)r(;sident and clerk, are hereby authoiized and required to discharge the same duties as are now recjuired by law of boards of supervisors and county clerks in the counties in this state, so far as the same apply to holding elec- tions, canvassing election returns, and issuing certificates of election. They 486 COUNTIES. 3913 shall keep a full record of all their proceedings, and file the same, with the orig- inal election returns, in the county clerk's office, as soon as he shall have been qualified, and thereupon the power and duties of said commissioners shall cease. Organization. Sec. 7. It shall be the duty of the board of supervisors of Modoc county, whose election is provided for by this act, to meet at the county seat on the first Monday of the month subsequent to their election, take the oath of office, and file the official bond required by the Political Code. The member of district number one, shall be president of the board. They shall tlien allow such per diem and mileage to the commissioners and officers of election as they may think proper and just,, and a warrant shall be drawn by the auditor on the county general fund in favor of each person to whom an allowance shall have been made, for the amount of such allowance. Said board shall ajipoint two citizens, and freeholders of Modoc county, to act as joint commissioners with an equal number to be appointed by the board of supervisors of Siskiyou county, to ascertain and declare the amount of the indebtedness of Modoc county to Siskiyou county. Immediately on their appointment, such commis- sioners shall notify the board of supervisors of Siskiyou county of that fact. Upon the receipt of such infoi-mation said boaixl shall proceed, without unnec- essary delay, to appoint a like number of commissioners, citizens and freehold- ers of Siskiyou county, who shall, at a time and j)lace to be agreed ujion, meet with the commissioners of Modoc count}'. The commissioners of the resi)ective counties, after having severally taken an oath to discharge honestly and to the best of their ability their duties as commissioners, shall organize as a joint commission, by the selection of one of their number as president, and one as secretary. As soon as organized^ the joint commission shall proceed, in the following manner, to determine the amount of the indebtedness of Modoc county to Siskij'ou county, to wit: they shall ascertain the indebtedness of Siskiyou county at the time this act takes effect; they shall then ascertain the total value of the assets belonging to said county; they shall then ascertain the assessed value, under the assessments of eighteen hundred and seventy-three, of the property in the territory hereby set apart to form Modoc county; then, after deducting the assets from the indebtedness, so as to ascertain the actual indebt- edness, the proportion due from Modoc county to Siskiyou county shall be ascertained as follows: as the total assessed value of jiroperty in the territory taken from Siskiyou county to form Modoc county is to the total assessed value of Siski^'ou county before the formation of Modoc county, so shall be the proportion of the actual indebtedness of Modoc county to Siskiyou county, and said commissioners shall certify to their respective boards of supervisors such amount. The board of supervisors of Modoc county shall then issue the bonds of said county, payable in ten years from the organization of said county, and bearing interest at the rate of ten per cent, per annum, payable annually, j^rin- cipal and interest of said bonds to be paid in United States gold coin to said Siski^^ou county, for such sum as the commissioners certify to be due, said bonds to be of the denomination of five hundred dollars. Said board of supervisors shall procure and provide a suitable place or places, to be used as a court-house and jail until the location of the county seat is determined and a suitable build- ing erected. They shall, when they levy state and county taxes, levy a tax of twenty cents upon each one hundred dollars of taxable property in said county, which shall be collected as other state and county taxes are collected, and shall be set apart as an interest and sinking fund to liquidate the debt due from Modoc county to the county of Siskiyou. Said interest and sinking fund shall be apiDropriated, first, to pay the interest due on the bonds, according to the 487 3913 POLITICAL CODE. tenor thereof, given bv Modoc couuty to Siskiyou county; and, second, when- ever there shall be a sufficient sum remaining-, after paying interest as aforesaid, to pay off one of said bonds, the treasurer of Modoc county shall present the same to the treasurer of Siskiyou county, at Yreka, who, upon receipt thereof, shall sun-ender one of said bonds, which shall be canceled by the treasurer of Modoc county, and hied in the clerk's office. Said board of supervisors shall exercise such other powers and duties as are conferred by the general laws on boards of supervisors in the counties of this state. Actions reinored. Sec. 8. All civil actions, or jn-oceedings in the nature of actions, whether original or upon ajipeal, civil or criminal, which shall be pending in the district court, county court, or j^robate court, in the county of Siskiyou, at the time of the organization of !Modoc county, in which the defendants are residents of Modoc county, shall be removed for trial and final determination to the proper, courts of Modoc couuty, on motion of any party interested; provided, that actions commenced for the collection of taxes and licenses, shall not be re- moved from the courts of Siskiyou county; provided, further, that in all criminal cases, where the ofTenses Avere committed within the limits of Modoc county, upon the apj^lication of the district attorney of Modoc county, said causes shall be removed to Modoc county. Transcript of records. Sec. 9. All residents or proj^erty holders of Modoc county, upon application to the county recorder of Siskiyou county, and upon the payment of the fees required by law, shall be entitled to receive a transcri^^t of the record, diily attested, of any projoerty situated in the county of Modoc and recorded in his office; and upon presentation of said transcript to the county recorder of Modoc county, and upon the payment of the fees required b}' law, said recorder shall record the same, and said record shall have the full force and effect of the original record; provided, however, that the board of supervisors of Modoc county shall, within two years, procure a suitable set of books, and make such arrangements as they may agree upon with the county recorder of Siskiyou county, for the transcribing therein all necessary records, j^roperly certified; said records to have the same effect and force as the original records. Senatorial and judicial districts. Sec 10. Modoc county shall be attached to and form a part of the twenty- eighth senatorial district, and, for judicial purposes, shall be attached to and form a part of the ninth judicial district. The terms of the district court shnll bo held in and for the county of Modoc on the second Monday of July and the third ilouday of October of each year. Election o/ officers. Sec. 11. The county officers of Modoc county shall, except as otherwise pro- vided by thi8 act, be elected at the same time as the county officers in other counties of this state, and shall hold tlieir offices for the term fixed by law. They shall give bonds, for the faitliful discharge of their duties, in such manner and sums as required by the Political Code. The supex-visors of Modoc county shall j.rovide for the election of their successors, whose term of office shall be three years. iJufies. Sec. 12. All officers provided for by this act, shall perform duties as required by the general laws of the state, unless otherwise provided by this act. Comiicusation of hoard. Sec. 13. The supenisors of :\lodoc county shall receive for their services four 488 COUNTIES. 3913-3914 dollars per day, and tweuty-five cents per mile for coming to the county seat; 2)rovided, tliat but one mileage shall Le charged for each term of the board; and, j^rovided, that for the year eighteen hundred and seventy-four, and any year thereafter, the per diem and mileage of any one supervisor shall not ex- ceed the sum of two hundred dollars. Salaries of officers. Sec. 14. The officers of Modoc county shall receive the following salaries and fees: The treasurer shall receive per annum the sum of six hundred dollars; the assessor, for assessing said county, shall receive per annum the sum of six. hundred dollars; the district attorney the sum of five huudi-ed dollars, and the fees allowed the district attorney of Siskij'ou county; the superintendent of jiublic schools, the sum of three hundred dollars; the sheriff and county clerk shall receive the same fees the sheriff and county clerk of Siskiyou receive; pro- vided, that when said fees are a charge against said ]Modoc county, a deduction of twenty-five per cent, shall be made therefrom; and, provided further, that the county clerk, as clerk of the board of supervisors, board of equalization, and board of canvassers, shall receive the sum of one hundred and fifty dollars per annum, payable quarterly. The other officers of Modoc count}' shall receive no salaries, but the same fees allowed similar officers in Siskiyou county. Notaries. Sec. 15. Modoc county shall be entitled to five notaries public, as provided for by law. School and school moneijs. Sec 16. The superintendent of public schools of Siskiyou county shall fur- nish the superintendent of jDublic schools of Modoc county a certified copy of the last census lists of the different school districts in the temtory set apart to form Modoc county, and shall draw his warrants on the treasurer of Siskiyou county, in favor of the superintendent of schools of Modoc county, for all money that is or may be due by apportionment or otherwise to the different school districts of Modoc county. Sec. 17. No indebtedness shall be incurred by Modoc county which will in the aggregate exceed the sum of twenty thousand dollars. Sec. 18. All acts and parts of acts, so far as they conflict with the provisions of this act, are hereby repealed. Sec 19. This act shall take effect and be in force from and after its passage. An Act supplemental to tlie foregoing act of February 17, 1874:. Approved March 23, 1874; 1873-4, 517. [This act made provision for the hospital fund of Modoc county; also defined the powers of the commissioners as to the registry of voters; also provided for the levy of a tax for a building fund; and extended the act of March 2(i, 1857, in relation to hogs found running at large in Colusa and other counties, over Modoc county.] HUMBOLDT. 3914. Humboldt. Sec 3914. Beginning at southwest corner of Klamath, as established in sec- tion 3910; thence east, to common corner of Klamath, Humboldt, and Trinity, in Trinity river, as established by section 3910; thence southeasterly, up Trin- ity river, to the mouth of its south fork; thence southeasterly, along the east- ern side of said south fork, one hundred feet above high water mark, to the mouth of Grouse creek; thence south, to a point on the fortieth degree of north latitude, being on northern line of Mendocino, and forming southeast corner of 489 3914-3917 POLITICAL CODE. Humboldt; thence west, on said line, to the Pacific ocean; thence northerly, along the ocean shore, to the place of beginning. County seat — Eureka. [See also act of March 28, 1874, as to partitioning Klamath county between Humboldt and Siskivou counties, ante, 3910.] 3915. Tehama. Skc. 3915. Beginning at the point of intersection of Sacramento river with south line of township twenty-three north. Mount Diablo base; thence west, on said line, being northern line of Colusa, to the summit of the coast range, being southwest corner; thence northerly, on said summit line, to the southwest cor- ner of SLasta, as established in section 3911; thence easterly, on the southern line of Shasta, as establi.shed in section 3911, to the northwest corner of Plumas, being the point of intersection of southern line of Shasta with the summit line of the dividing ridge between the waters of Mill and Deer creeks, tributaries of the Sacramento river, and Eice's and Warner's creeks, tributaries of the north fork of Feather river, forming northeast corner of Tehama; thence southerly, along said summit line, to the north point of Butte county, it being the point where the northern road from Big Meadows to Butte Meadows, by Dye's house, crosses the said summit line; thence southwesterly, in a direct line, to theheac^ of Kock creek; thence southwesterly, down Piock creek, to the south line of town- ship twenty-four north, Mount Diablo base; thence west, on said line, to the Sacramento river; thence along said I'iver to the place of beginning. County seat — Ked Bluff. COLUSA. 3916. C>Au. bttter defiue the boiiudnry-liuf! of Mariposa and Fresuo counties. Apiiroved April 1, 187'2; 1871-2, 891. I)(')t(ri])lion of ltiiiiiirhn')j-line. Section 1. The line at present known as the boundary line between Mari- posa and Fresno counties, from the westerly point of junction of said counties, 498 COUNTIES. 3938-3930 running easterly to the southwest corner of section eleven and tlie nortliwcst corner of section fourteen, in township six south, range twenty east, of M(junt Diablo meridian; thence east to the northwest corner of section fourteen, in township six south, range twenty-one east; thence north to the northwest cor- ner of section thirty -five, in township five soutli, range twenty-one east; thence east to the southwest corner of section thirty, in township five south, range twenty-two east; thence north, to the southwest corner of the Mariposa big ti-ee grant; thence east along the line of said grant to the soutlieast corner of said grant; thence north along the line of said grant to the northeast corner of the same; thence north to the original boundary-line between the counties of Mari- j)osa and Fresno; thence along said line to the present boundary-line of Tuol- umne county, is hereby declared and constituted the boundary-line between said counties. [Amendment, approved February 11, 1874; 1873-4, 100; ( Angeles. Sec. 3945. Beginning- at southeast corner of Santa Barbara, in the Pacific ocean, at a point on extension line of the northern boundary of the rancho called Malag'a, western corner; thence northeasterly, so as to include said rancho, to the northwest coi-ner of the rancho called Triumfo, running on northerly line of the same to the northeast corner thereof; thence to the sum- mit of the ridge of hills called Santa Susanna; thence in a direct line north- westerly, to the southwest corner of Kern, as established in section 3941, form- ing the northwest corner of Los Angeles; thence east, on southern line of Kern to the western line of San Bernardino, as established in section 3943; thence soutlierly, on western line of San Bernardino to its point of intersection with northern line of San Diego, as established in said section; thence southwest- erly on San Diego line, as established in section 3944, to northwest corner of San Diego, in Pacific ocean; thence northwesterly, along ocean shore to place of beginning; including the islands of Santa Catalina, San Clement, and the islands oft" the coast included iu Los Angeles county. County seat — Los Angeles. SANTA BARBARA. 3946. Snida Barbara. Sec. 3946. Beginning at the western corner of Los Angeles, as established in section 3945; thence northerly, on westerly line of Los Angeles, as described in said section, to the northwest corner thereof, on the summit of the coast range, being also the southAvest corner of Kern, as established in section 3941; thence northwesterly, on the summit line, being also on western boundary of Kern, to a point of intersection with the southern line of township ten north, San Ber- nardino base; thence west, on said township line, to the Santa Maria river; thence down said river, and down the creek which divides that part of Guada- lupe rancho known as La Larga from that known as Oso Flacco, to a point in the Pacific ocean opposite the mouth of said creek, forming northwest corner; thence southeasterly, by the ocean shore, to the place of beginning; including the islands of Santa Barliara, San Nicolas, San Miguel, Santa Rosa, and Santa Cruz. Count}- seat — Santa Barbara. (The county of Santa Barl)ara was divided and the ncAV county of Ventura created out of the eastern portion by the following act:] VENTURA. .\ii Aft to emitf the- county of Vewturu, to estitblish the boundaries tbereof, and to provide for its urgauizutiou. Aiiprovfd, March 22, 1872; 1871-2, 484. W'ulara. Section 1. There shall be farmed (jut of the eastern part of Santa Barbara " county a new county, to be called Ventura. rti>ini(lari>'i<. Sec. 2. The l)oundarics of Ventura county shall be as follows: Commencing on the coast of the Pacific ocean, at the mouth of the Rincon creek; thence fol- lowing up the centre of said creek to its source; thence due north to the north- 502 COUNTIES. 394G era boundary -line of Santa BarLaia county; tbence in an easterly iliroctiou alouf^' the said boundary-line of Santa Barbara county to tbe northeast corner of the same; thence southerly along the line between the said Santa Barbara county and Los Angeles county to the Pacific ocean and three miles therein; thence in a northwesterl}' direction to a point due south of and three miles dis- tant from the centre of the mouth of Bincon creek; thence north to the point of beginning, and including the islands of Anacapa and San Nicolas. County seat. Sec. 3. The seat of justice shall be at the town of San Buenaventura until otherwise provided by law. Aiypointrtierd of county judge. Sec. 4. The governor of this state shall, when this act takes effect, appoint some suitable person, resident of Yentura county, to act as count}' judge of said county, whose term of office shall continue until the first day of January, one thousand eight hundred and seventy-four, and until his successor is elected and qualified, and who shall hold his office and reside at the county seat. There shall be chosen by the qualified electors thereof at the judicial election to be holden in the year eighteen hundred and seventy-thi*ee, and every fvid('d for in an act to regulate fees of office, approved March ij, A.D. 1870, for sinjilar officers in the county of Santa Barbara. Notaries pnljlic. Sec. 15. Ventura county shall be entitled to five notaries public, as provided for by law. School sujjerintendeul. Sec. 10. The superintendent of public schools of the county of Santa Bar- bara sliall furnish the superintendent of public schools of Ventura county a certified copy of the last census lists of the- different school districts in the terri- 506 COUNTIES. 394G-3948 toiy set apart to form Ventura county, and shall dra^v liis -wan-ant on the treas- urer of Santa Barbara county in favor of the superintendent of schools of Ventura count}- for all money that is or may be due by apportionment, or other- wise, to the different districts (school) of Ventura county. DeUiiqueni taxes. Sec. 17. All delinquent taxes due the county of Santa Barbara at the time this act takes effect, from the persons or jiroperty in Ventura county, shall be paid to and collected by the proper officers of Ventura county, and the auditcn* of Santa Barbara county shall certify such delinquent taxes and tax list in duplicate to the collector and auditor respectively of Ventura county; they shall be collected by the officers of Ventura county in the same manner as de- linquent taxes are collected in the other counties of the state. Bonds. Sec. 18. The suj)ervisors may issue Ventura county bonds in a sum not to exceed in the aggregate twenty thousand dollars, bearing interest not to exceed ten per cent, jier annum, paj^able in ten years from the date of their issuance; the principal and interest of said bonds to be paid in the gold coin of the United States; and may negotiate the same to provide a cash fund to be used in the payment of the first exjoenses of the county and the salaries of its offi- cers. After the issuance of said bonds, no debt shall be created by the county of Ventura in excess of the amount of money in the treasuiy of said county. Sec. 19. All acts and parts of acts, so far as they conflict with the provisions of this act, are hereby repealed. Sec. 20. This act shall take effect and be in force from and after the first day of January, 1873. SAN LUIS OBISPO. 3947. San Luis Obispo. Sec. 3947. Beginning in Pacific ocean, at northwestern corner of Santa Bar- bara, as established in section 394G; thence easterly, on the northern line of Santa Barbara, up the Santa Maria river, to intersection of southern line of township, ten noi-th, San Bernardino base; thence east on said line to point on summit of coast range, forming the southeast corner, also northeast corner of Santa Barbara; thence northwesterly on summit line, being western line of Kern, to its intersection with sixth standard south. Mount Diablo base, being the common corner of Tulare, Kern, Monterey, and San Luis Obispo; thence west on said standard line and extension thereof to the Pacific ocean ; thence southerly along the shore to the place of beginning. County seat — San Luis Obispo. montekey. 3948. Monterey. Sec 3948. Beginning in Pacific ocean, at southwest corner of Santa Cruz, as established in section 3949; thence west to the mouth of Pajaro river, on the bay of Monterey; thence up said stream to its source, the small lake San Felipe; thence along the northern and w^estern banks of said lake to the creek San Felipe; thence east to the summit line of the coast range, forming northeast- ern corner; thence southeasterly along the summit of the coast range to the sixth standard south. Mount Diablo base, being the common corner of San Luis Obispo, Kern, Tulare, and Monterey; thence following the northern boundaiy of San Luis Obispo county, on said standard line and extension thereof, to the Pacific ocean; thence along the shore northerly to the place of beginning. Count}' seat — Monterey. [The county of Monterey was divided and the new county of San Benito created out of the eastern portion by the following act:] 507 3948 • POLITICAL CODE. SAN BEXITO. An Act to create the county of San Benito, to establish the boundaries thereof and to pro- vide for its organization. Approved, February 12, 1874; 1873-4, 95. San Benito county. Section- 1. There shall be formed, out of the eastern part of Monterey county, a new coimty, to be called San Benito. Boundaries. Sec. 2. The boundaries of San Benito county shall be as follows: Commenc- ing at a point in the centre of Pajaro river, said point being the northwest cor- ner of the Eaucho las Arroinitas y Agua Caliente, and being on the northern boundary-line of Monterey county, and running thence in a southerly direction alang the southwest boundaiy of said rancho to the southwest corner thereof; theuce southerly in a direct line to the northwest corner of the Rancho las Ver- gelos; theuce southerly in a direct line to the summit of the Gavilan range of mountains; and thence southeasterly along the summit of said Gavilan moun- tains to the Chalon peak; thence southeasterly in a direct line to the division line of the parts of the San Lorenzo Sobrantes owned respectively by Breen and Dunn; thence along said dividing line of said rancho to the southern bound- ary thereof; thence due south to the San Lorenzo creek; thence southeasterly up said San Lorenzo or Lewis creek, and up the north fork thereof, to the summit of the divide between the waters of said Lewis creek and San Benito creek; theuce, following said divide southerly, to the eastern boundary of Monterey county, and the summit of the coast range of mountains; thence northerly, fol- lowing the summit of said mountains, to the southern boundary-line of Santa Clara county; thence westerly, following the southern boundary-line of Santa Clara county, to the place of beginning. County seat. Sec 3. The seat of justice shall be at the town of Hollister, until otherwise provided by this act. Appointment of county judge — Salary — Terms of county and probate courts. Sec 4. The governor of this state shall, when this act takes effect, ajipoint some suitable person, resident of San Benito county, to act as county judge of said county, whose term of office shall continue until the first Monday of Jan- uary, one thousand eight hundred and seventy-six, and until his successor is elected and qualified, and who shall hold his office and reside at the county seat. There shall be chosen by the qualified electors thereof, at the judicial election to be holdeu in the year eighteen hundred and seventy-five, and every four years thereafter, a county judge for San Benito county, whose term of office shall commence on the first Monday of January succeeding his election, and continue for the term of four years. Said county judge of San Benito county shall receive a salary of twelve hundred dollars per annum, to be paid montlily. Said county judge shall liold the courts required by law to be held by county judges. There shall be four regular terms of the county court held in each year, said terms to commence on the first Monday in February, May, August, and November; provided, however, the county judge may call and hold special terms of tlie jtroljate court, whenever public necessity may require. Said county judge shall discharge all the duties required by law of county judges in this state. Election and ofUcrr^. Sec 5. There shall be an election held in the county of San Benito within sixty days from the first meeting of the commissioners hereinafter provided for. There shall be cho.sen at said election, by the qualified electors of said county, 608 COUNTIES. 3948 one district atiovney; one county clerk, who shall be ex officio auditor, recorder, and clerk of the board of supervisors, and ex officio clerk of the county, pro- bate, and district courts; one county superintendent of public schools; one sheriff, who shall be ex officio county tax collector; one county assessor; one county treasurer; one county surveyor; one county coroner, who shall be ex officio public administrator. Said county officers shall hold their respective offices until the first Monday in March, a. d. eighteen hundred and seventy-six, and until their successors are elected and qualified. There shall be chosen at the same election, by the qualified electors thereof, one supervisor for each supervisor district in said county, who shall hold their offices as follows: Dis- trict number one, until the first Monday in January, a. d. eighteen hundred and seventy-five; district number two, until the first Monday in January, a. d eighteen hundred and seventy-six; and district number three, until the first Monday in January, a. d. eighteen hundred and seventy-seven. There shall be chosen at said election, by the qualified electors thereof, two constables for each township, and one road overseer for each road district in said county; provided, that all the justices of the peace, elected at the judicial election held in the year A. D. eighteen hundred and seventy-three, residents of San Benito county, shall hold their offices for the time provided by law, upon having duly qualified as justices of the peace of San Benito county for the respective township in which they severally reside, as said townships are organized by the action of the board of commissioners jorovided for by this act. The terms of offices of justices of the peace, constables, and road overseers of San Benito county, shall be the same as in other counties of this state. At said election shall also be submitted to the qualified electors the permanent location of the county seat of said San Benito county, and the place receiving the highest number of votes therefor shall be declared by the commissioners the permanent county seat of said county. Commissioners and duties. Sec. 6. The governor shall, when this act takes effect, appoint five persons, residents of the proposed county, who shall be and constitute a board of com- missioners to perfect the organization of said San Benito county, a majority of whom shall constitute a quorum. Said commissioners shall meet in the town of Hollister, within twenty days after their appointment, and after being duly sworn to faithfully discharge their duties as prescribed by this act, shall organize, by electing from their number a president and clerk. They shall then divide said county into townships, define their boundaries, and designate the names of each. They shall also divide said county by townships into three supervisor districts, and number the same. They shall also establish election precincts, and appoint one inspector and two judges of election for each precinct in said county. They shall give thirty days' notice, by proclamation in some news- paper published in the county, of the officers to be elected, the precincts estab- lished, the officers of election, and shall designate the boundaries of each district, with their names and numbers. Said commissioners shall, on the sec- ond Monday after said election, meet at the county seat as a board of canvass- ers, and proceed to canvass the election returns. Said commissioners, their president and clerk, are hereby aiuthorized and required to discharge the same duties as are now required by law of boards of supervisors and county clerks, in counties in this state, so far as the same applies to holding elections, can- vassing election returns, and issuing certificates of election. They shall keep a full record of all their iiroceedings, and file the same with the original election returns, in the county clerk's office, as soon as he shall have been qualified, and thereafter the powers and duties of said commissioners shall cease and determine. 509 394S POLITICAL CODE. Supervisors, their poicers and duties. Sec. 7. It shall be tlie duty of the board of supervisors of San Benito count}'-, whose election is by this act provided for, to meet at the county seat on the first Monday of the month subsequent to their election and qualification, and elect the member from district number one chairman. They shall then allow such per diem and mileage to the commissioners and officers o/ election as they may think proper and just, and such allowance shall be paid by a warrant drawn in favor of each by the proper oflicers. The board of supervisors shall procure and provide a suitable building or buildings, to be used as a court-house and jail, and for the accommodation of the various county officers; and for such purposes, they are hereby authorized to rent, or purchase, or construct suitable buildings. And in case of purcliase or construction, said board are authorized to issue bonds of said county, not exceeding the sum of twenty thousand dol- lai-s, bearing ten per cent, per annum interest, and payable within such times as the board may direct, not exceeding fifteen years from the date of issue thereof; and, provided, that said bonds shall not be disposed of or sold on behalf of said county for a less svmi than ninety cents on the par value thereof. The board shall, in accordance with the general laws governing boards of supervisors, levy state and county taxes; provided, that for the general fund they shall have power to lev}' not exceeding ninety cents on each one hundred dollars of value of taxable property in said county. They may also levy a tax not exceediug ten cents upon each one hundred dollars of value of the taxable property of said county, which, when collected, shall be set aside and known as the "Contingent Fund," and which shall be used exclusively for the payment of necessar}'' re- pairs upon county buildings, for the purchase of record books, stationery, fuel, and lights for county offices; and, in case of the purchase or construction of county buildings, and the issue of bonds in payment therefor, then the board of supervisors are further authorized to make an additional levy, not exceeding twenty cents on each one hundred dollars of value of taxable propei-ty of said county, which, when collected, shall be set aside and known as the "Building Fund," and shall be used only in the redemption of bonds issued for the pur- pose of purchasing or constructing county buildings and paying yearly interest thereon. Actions removed. Sec. 8. All actions, or proceedings in the nature of actions, whether original or upon appeal, civil or criminal, which shall T)e jaending in the district court, county court, or probate court, in the county of Monterey, at the time of the organization of San Benito county, where the defendants therein reside in said Sau Benito county, shall be removed for trial and final determination to the proper courts of San Benito county, on motion of any party interested; and, provided, that all criminal causes where the offense was committed within the limits of San Benito county, shall, upon application of the district attorney of San Benito county, be removed to San Benito county. Tranacrijition of records. Sec. \). The board of supervisors of San Benito county are hereby authorized to contract with some competent person for transcribing from the records of Monterey county such parts thereof as relate to property situated in San Benito county, and for such purpose shall provide suitable books; and said records, when so transcribed and certified, shall have the same force and effect as such original records. The person so employed shall have access to said records of Monterey county for said purpose of transcribing the same. The compen- sation for said services shall be fixed and allowed by the board of supervisors of San Benito county, and paid out of the general fund of said county. 510 COUNTIES. 3948 Judicial district. Sec. 10. The county of San Benito shall be attached to and form a part of the twentieth judicial district. Official bonds. Sec. 11. The county ofl&cers of San Benito county shall, except as otherwise jn'ovided by this act, be elected at the same time as county officers in other counties of this state, and shall hold their offices for the term fixed by law. They shall give bonds for the faithful discharge of their duties, to be approved by the county judge, in the following sums: the sheiiff, in the sum of eight thousand dollars, and as ex officio county tax collector, in the sum of twenty- five thousand dollars; the county clerk, in the sum of five thousand dollars, and as ex officio recorder and auditor, in the sum of five thousand dollars each; the county treasurer, in the sum of thirty thousand dollars; the district attorney, in the sum of four thousand dollars; the county surveyor, in the sum of three thousand dollars; the coroner and ex officio public administrator, in the sum of five thousand dollars; each supervisor, in the sum of two thou- sand dollars; and each justice of the peace, constable, and road overseer, in the sum of two thousand dollars. The supervisors of San Benito county shall provide for the election of their own successors, whose term of office shall be three years. Duties. Sec. 12. All officers provided for by this act shall perform duties as required by the general laws of the state, unless otherwise provided by this act. SalaiHes. Sec. 13. The officers of San Benito county shall receive the following salaries and fees: the treasurer shall receive, per annum, the sum of one thousand dollars; the district attorney, the sum of twelve hundred dollars; the superin- tendent of public schools, the sum of five hundred dollars; the assessor, the sum of one thousand dollars per annum; and each member of the board of supervisors shall receive a per diem of five dollars for each day's services as a member of the board, and twenty-five cents per mile in going to the county seat to attend the sessions of said board. The fees and salaries of all officers, except as herein specially named, shall be the same as now allowed said officers in Monterey county for like services. Notaries. Sec. 14. San Benito county shall be entitled to five notaries pubhc as pro- vided for by law. ScJiool ceiisiis lists and moneys. Sec 15. The superintendent of public schools of the county of Monterey shall furnish the superintendent of public schools of San Benito county with a certified copy of the last school census lists of the differeut school districts in the territory set apart to form San Benito county, and shall draw his warrant on the treasurer of Monterey county in favor of the superintendent of schools of San Benito county, for all money that is or may be due by apportionment or otherwise to the different school districts of San Benito county, aud the auditor of Monterey county shall in like manner draw his warrant m favor of the auditor of San Benito county for all money that is or may be due by apportionment or otherwise to the different road district funds in the territory set apart to form San Benito county, and said money shall be paid into the treasury of San Benito county, and be properly credited to the respective districts in said county. 511 3948-3950 POLITICAL CODE. Delinquent iaxes. Sec. 1<3. All delinquent taxes due to tlie county of Monterey at tbe time this act takes effect, from tlie persons or property in San Benito county, shall be paid to and collected by the proper officers of San Benito county, and the aud- itor of Monterey county shall certify such delinquent taxes and tax lists in du- plicate to the collector and auditor respectively of San Benito county. They shall be collected by the officers of San Benito county in the same manner as delinquent taxes are collected in other counties in this state. Sec. 17. All acts and parts of acts, so far as they conflict with the provisions of this act, are hereby repealed. Sec 18. This act shall take effect and be in force from and after its passage. Au Act siiiiijlemcntiiry to the foregoing act of February 12, ISli. Approved March 18, 1874; 1873-4, 428. [This act provided for a board of commissioners to determine the amount of indebtedness as between San Benito and Monterey counties, and for ways and means to pay the same by the issue of bonds by the county found to be indebt- ed. It also provided for the terms of the district, county and probate coui'ts in Sau Benito countv. It was amended by act of March 10, 1876; 1875-6, 177, in so far as related to the commissioners, issue of bonds and compensation of commissioners.] SANTA CRUZ. 3949. Santa Cruz. Sec 3949, Beginning at the south corner of San Mateo county, at a point in the PaciHc ocean south forty -five degrees w^est, three miles from the intersection of the east line of raucho Punta del Alio Nueva with said ocean, forming w^est- ern corner; thence north, forty-five degrees east, to said j)oint of intersection; thence northerly, following the eastern line of said rancho, to its intersection with the south line of township eight south, range four west, Mount Diablo base and meridian; tbence east to the southeast corner of said township; thence north to the northeast corner of section twenty-five of said township; thence east to the northeast corner of section twenty-six, township eight south, range three west; thence north to the summit of Santa Cruz mountains, being west- em line of Santa Clara county; thence southeasterlj^ along the summit of said mountains, on the western line of Santa Clara, to the Pajaro river, forming southeast corner, on north line of Monterey; thence westerly along said river, on northern line of Monterey, to the bay of Monterey, and three miles westerly into the ocean, forming southwest corner; thence northwesterly along the shore to the point of beginning. County seat — Santa Cruz. SAX FEAKCISCO (ciTY AND COUNTY). 3950. Sri 7 1 Franciaco. Sec 3950. Beginning at the southwest corner, being northwest corner of San ]^Iateo, in Pacific ocean, on the extension of northern line of township three south, of Mount Diablo base; thence northerly along the Pacific coast to its point of intersection with westerly extension of low water line on northern side of the entrance to Sun Francisco bay, being southwest corner of Marin and northwest corner of San Francisco; thence easterly, through Point Bonita and Point Caballo, to the most southeastern point of Angel island, all on the line of Marin, as established in section 3957; thence northerly, along the easterly line of Marin, to the northwest point of Golden rock (also known as Bed rock), being a common corner of Marin, Contra Costa, and San Francisco; thence due southeast four and one half miles, more or less, to a point distant three statute 512 COUNTIES. 3950-2?53 miles from the natural high water mark on tlie eastei-u shore of San Francisco bay, being a common corner of Contra Costa, Alameda, and San Francisco; thence southeasterly, in a direct line, to a point three miles from said eastern shore, and on the line first-named (considered as extending across said bay); and thence west along said first-named line to the place of beginning. The islands known as the Farralones shall be attached to and be a jDart of said city and county. SAN MATEO. 3951. San Mateo. Sec. 3951. Beginning at the southwest corner, being west corner of Santa Cruz county, as established in section 3949; thence on northwestern line of Santa Cruz, as established in said section, to the southwestern line of Santa Clara, being the summit line of the Santa Cruz mountains; thence northwest- erly, by said summit line, to the source of San Francisqiiito creek; thence down the south branch thereof, and down said creek to its mouth; thence to a point in the middle of San Francisco bay, opposite said mouth, forming common corner of San Mateo, Santa Clara, and Alameda; thence in a direct line to the southeast corner of San Francisco city and county, as established in section 3950; thence due west, on southern line of San Francisco city and county, to the southwest corner thereof; thence southerly, along the ocean shore, to the point of beginning. County seat — Redwood city. SANTA CLAKA. 3952. Santa Clara. Sec. 3952. Beginning at a point oiDposite the mouth of San Francisquito creek, being common corner of Alameda, San Mateo, and Santa Clara, as established in section 3951; thence easterly, to a point at the head of a slough, which is an arm of the bay of San Francisco, at its head, making into the main land in front of the Gegara ranches; thence easterly, to a lone sycamore tree that stands in a ravine between the dwellings of Fluhencia and Valentine Gregara; thence easterly, up said ravine, to the top of the mountains, and as surveyed by Horace A. Higley, and shown on survey and map of Alameda county, eighteen hundred and fifty-seven; thefice on a direct line easterly, to the common corner of San Joaquin, Stanislaus, Alameda, and Santa Clara, on the summit of the coast range, as established in section 3932; thence south- easterly, following the summit of the coast range, to the northeast corner of Monterey county, as established in section 3948; thence westerly, following the northern boundary of Monterey county to the southeast corner of Santa Cruz county, as established in section 3949; thence northwesterly, following the summit of the Santa Cruz mountains, to the head of San Francisquito creek; thence down said creek, to its mouth; thence in a direct line to the place of beginning. County seat — San Jose. ALAMEDA. 3953. Alameda. Sec. 3953. Beginning at the southwest corner, being the common corner of San Mateo, Santa Clara and Alameda, as established in section 3951; thence easterly, on northerly line of Santa Clara, as established in section 3952, to common corner of San Joaquin, Stanislaus, Santa Clara and Alameda, as estab- lished in section 3932; thence northwesterly, on the west line of San Joaquin county, to the slough known as the Pescadero, being the west channel or old San Joaquin river; thence westerly, in a straight line, until it strikes the divid- ing ridge, in the direction of the house of Joze Harlan, in Amador valley; 33 513 3953-3954 POLITICAL CODE. thence westerly along said ridge, crossing the gulch one half mile below Prince's mill; thence to and running upon the dividing ridge between the red- woods known as the San Antonio and Prince's woods; thence along said ridge to the head of the gulch or creek (Cerrito creek) that divides the ranches of the Peraltas from the San Pablo ranches; thence down said gulch to its mouth; thence southwesterly to the common corner of San Francisco, Contra Costa and Alameda, as established by section 3950; thence southerly to a point in the bay of San Francisco that would intersect a line parallel with the north line of the Central Pacific railroad company's wharf (as it now is) if extended westerly five hundred feet toward Yerba Buena island; thence southeasterly in a line parallel with the east line of the city and county of San Francisco (which is the line now dividing said city and county from the county of Alameda) to its inter- section with the gouth line of said city and county, as established in section 3950; thence easterly along said last-mentioned line to the northeast corner of San ^lateo; and thence southeasterly along the eastern line of San Mateo to the I'lace of beginning, Horace A. Higley's survey and maj) of Alameda County, 1857, are declared to contain a more particular description of the line out of the bay of San Francisco. County seat, city of Oakland; provided that nothing in this act contained shall be construed to place "Yerba Biiena island," or any part thereof, outside the limits of the city and county^ of San Francisco, but the same shall be deemed to be within said city and county, and the westerly boundary-line of the county of Alameda shall not come within two thousand and five hundred feet of any part of said island. [Ajnendment, cqyproved March 30, 1874; Amend- inenl6 1873-4, 168; took effect sixtidh day aftei- passage .^"^ CONTRA COSTA. 3954. Contra Costa. Skc. 3954. Beginning in bay of San Francisco, at the northwest point of Red rock, being the common corner of Marin, Contra Costa, and San Francisco, as established in section 3950; thence up the straits and bay of San Pablo, on eastern boundary of Marin, to point of intersection with line bearing south twenty-six and one half degrees east, and about six and one quarter miles distant from southwest corner of Napa county, as established in section 3958, forming common corner of !Mann, Solano, Sonoma, and Contra Costa, as established in section 3955; thence to the straits of Carquinez; thence np said straits and Suisun bay, to the mouth of the San Joacjuin river; thence up said river, to the confluence of the west and main channels thereof, as laid down on Gibbe's map; thence up the said west channel, to a point about ten miles below Moore and Rhodes' ranch, at u bend where the said west channel, running downward, takes a general course ncjrth, the point being on the westerlj^ line of San Joaquin county, and forming tlie northeast corner of Alameda and southeast corner of Contra Costa; tlience on the northern line of Alameda, as laid down on Horace A, Higley's map, and as established in section 3953, to the easterly line of San Francisco city and county, as ostal>lished in section 3950; thence due northwest, along said easterly line of San Francisco, four and one half miles, more or less, to the ])lace of beginning. County seat — Martinez. (n) ThonrlKinal Bfctlon after the words "down siiid i)ln(e of beginning. Horace A. Higloy's survey and KiiMi t.. llK iiKiutli," i 3914. Co>t of aurvcy to be apportioned equally among counties interested. Sec. 3974. The cost of making- such surveys must be apportioned equally among the counties interested, and the board of supervisors must audit the >ame, and the amounts must be paid out of the general county fund. 3975. Which county cnois real property when county is divided. Stc. 3975. When a county is divided or the boundary is altered, all taxes levied before the division was made or boundar}' changed must be collected l>y the officers of and belong to the county in which the territory was sitiaated liefore the division or change. S976. Petition for change of county seat. Sec. 397G. "VMienever the inhabitants of am^ county of this state desire to remove the county seat of the county from the place where it is fixed by law or otherwise, they may jiresent a petition to the board of supervisors of their county, praying such removal, and that an election be held to determine to what place such removal must be made. 3977. Superviso7-s to order election. Sec. 3977. If the petition is signed by qualified electors of the county, equal in numbers to at least three fifths of all the votes cast in the county at the last jtrei-eding general election, the board must, within five days after receiving such jtetition, order an election, naming the day on which it must be held, not more than .sixty nor less than thirty-five days from the time of calling it, specifying its object. \Amendnumt, apfjroved March 30, 1874; Amendments 1873-4, 170 ; took e[feci July 1, 1874, in San Mateo county, and in other counties from passage. ^^^ o978. Notice of election. Sec. 3978. Notice of not less than twenty-five clays must be given of the elec- tion, by posting notices thereof in each election precinct within the county. Amnulment, ajjjjroved MarcJi 30, 1874; Amoidments 1873-4, 55; took eD'ect July '>. 1.S74."' 3979. Elfction, hnr hold and conducted. Sec. 3979. The election must be held and conducted and the returns made in «11 n-spects in the manner prescribed by law in regard to elections for county ■ pfBccrs. 3980. Vot(>r to vote for place he prefers. Sec, 3980. In voting on the question, each elector must vote for the place in tlie county which he prefers as the seat of justice, plainly designating it in his I. allot. 3981. Notice of rt'sult . Sec. 3981, "When tlie returns have been received and compared, and the re- sults aKcertnined by the board, if a majority of all the votes cast are in favor of any i)articular ])laco, the board must give notice of the result by posting notices T' Thf; |TU'iiial Hii ti|.n hml the word " primary " iricnt-roll, fqiuil in number to at least one half of all "".LV '"','""' .'"'^■•, *'"■ V'ttB;" but tljis amendment was Buperseded by ih] The oriyinnl (set-tlon inntind of the wordK the ami jidmeut in the text. See poHt. •'three fifths" had "one third." It \v«H amended by (r) The oriKinal section required notice to be Riven anotb.r act of March 3fl, JK7« (Amrndni.ntH 1873-4, by" publication in Bonie newspaper, if there is one r 3982. Place diosen to be coimdj seal. Sec. 3982. In the notice provided for in section 3981, the place selected to be the county seat of the county must be so declai'ed from a day specified in the notice not more than ninety days after the election. After the day named in the notice the place chosen is the county seat of the county. 3983. Statement of result. Skc. 3983. "Whenever any election has been held as provided for in the pre- ceding sections of this chapter, the statement made by the board of supervisors, showing the I'esult thereof, must be deposited' in the office of the county clerk, and whenever the board gives the notice prescribed by section 3982, they mu.st transmit a certified copy thereof to the secretary of state. 3984. No second election to be held within one year. Sec. 3984. When the election has been hel^d and a majority of the votes are cast for some other place than that fixed by law as the former county seat, no second election for the removal thereof must be held within two years there- after. 3985. Subsequent removal of county seat. Sec. 3985. When the county seat of a county has been once removed by a popular vote of the people of the county, it may be again removed from time to time in the manner j^rovided by this chapter; but no election must be ordered to effect any such subsequent removal, unless a petition praying an election is signed by qualified electors of the county equal in number to at least three fourths of all the votes cast at the next preceding general election; nor unless at such election, when ordered, two thirds of all the votes cast are in favor of some other place as the county seat of the county; and such election, when so ordered, shall take place at the first general election held thereafter, nor must two elections to effect such removal be held within four years. [Amend- ment, approved February 3, 1876 ; Amendments 1875-G, 64; took effect from passage. ^^'^ TITLE II. Sljc (fioi^rrnmcnt of (foiintic^. Chapter I. Counties as Bodies Corporate 4000 II, The Board of Supervisors 4022 III. County Officers 4101 IV. Salaries and Fees of Office "^328 V. Other County Charges 4343 (1.f Sual s '-.tion- on the great reai.ter thereof." to reaation of the taxes of the current fiscal year, and the same must always ])e made payable within eight months from the time of making the loan. 4006. ClasHifwalion of counties. Sec, 4000. For purposes other than for roads and highways the counties of this state are clas.sified as follows: (a) The original Bfctlon did not have the provlBO. 520 GOVEENMENT OF COUNTIES. 400G-4027 1. Those containing twenty thousand inhabitants or over constitute the first class; 2. Those containing eight thousand and under twenty thousand iulmhitaiits constitute the second cLass; and, 3. Those containing- less than eight thousand inhabitants constitute the third class. 4007. Same. Sec, 4007. Whenever a new census is taken, the counties, on the first day of July next thereafter, are, by operation of law, classified under such census. CHAPTER II. THE BOARD OF SUPERVISORS. Akticle I. Organization and Teems of Board 4022 II. General Permanent Powers 4U'l(j III. Other Powers and Restrictions 4004 AKTICLE I. OKGANIZATION AND TEEMS OF THE BOARD. 4022. Board, how many to compose. Sec. 4022. Each county must have a board of supervisors, consisting: 1. In counties of the first class, of seven members; 2. In counties of the second class, of five members; 3. In counties of the third class, of three members. [Amador county was specially declared a county of the third class by act approved March 18, 1874; 1873-4, 443. Humboldt county was constituted a county of the second class by act approved March 18, 1876; 1875-G, 333. J 4023. Qualifications. Sec. 4023. Each member of the board of supervisors must be an elector of the district he represents. 4024. Term of office. Sec 4024. The tenn of office of a sujjervisor is three years. 4025. When number increased or decreased, what hoard must do. Sec, 4025. If, under the classification, the number of supervisors of any county is either increased or diminished, the board of supervisors must re-dis- trict the county into supervisor districts, as nearly equal in population as may be, to corresj)ond with the number of supervisors to wdaich it is, under the new classification, entitled. If the number is increased, at the first general election thereafter supervisors must be elected for such new districts in which no super- visors then acting reside; and if the number is decreased, no successors must be elected for supervisors whose terms expire until the number is decreased to that to which the county is entitled. 4026. Vacancy in hoard, how filled. Sec. 4026. Whenever a vacancy occurs in the board of supervisors, from a failure to elect or otherwise, the county judge must fill the vacancy by ajijioint- ing for the unexpired term some qualified elector of the district in which the vacancy occurs. 4027. Members, how classified for election. Sec. 4027. The members of the board of supervisors must be by themselves so classified that a number as nearly equal as may be must be elected each year; the member longest in commission is the chairman of the board; and when two or more commissions expire at the same time, the board must elect a chau'man 521 4027-4032 POLITICAL CODE. from those holding the oldest commissions. A supervisor appointed to fill a vacancy is not the holder of the oldest commission, under this section, unless all the suiieiTisors are similarl}' situated. 4028. Chairman, permanent and iemporarij. Sec. 4028. The chairman must preside at all meetings of the board, and in ca.^e of his absence or inability to act, the members j^resent must, by an order, select one of their number to act as chairman temporarily. Any member of the board may administer oaths to any person concerning any matter submitted to them or connected with their jDOwers or duties. 4029. Clerk, rcho is, and his compensation. Sec. 4029. The clerk of the county is ex officio clerk of the board of super- risoi-s. The records must be signed by the chairman and the clerk. The clerk must be jiaid such compensation as is provided by law, in full for all services am clerk of the board. 4030. Indies of clerk. Sec. 4030. The clerk of the board must: 1. Eecord all the proceedings of the board; 2. Make full entries of all their resolutions and decisions on all questions concerning the raising of money for, and the allowance of accounts against the county; 3. Record the vote of each member on any question upon which there is a division, or at the request of any member present; 4. Sign all orders made and warrants issued by order of the board for the payment of money, and when he is not also the county auditor, certify the same to that officer; 5. Record the reports of the county treasurer of the receipts and disburse- ments of the county; G. Preserve and file all accounts acted upon by the board; 7. Preserve and file all petitions and applications for franchises, and record the action of the board thereon; 8. Record all orders levying taxes; and, 9. Perform all other duties required by law or any rule or order of the board. 4031. Books to be kept by the board. Sec 4031. The board must cause to be kej)t: 1. A "minute book," in which must be recorded all orders and decisions made by them, and the daily proceedings had at all regular and special meetings. 2. An "allowance book." in which must be recorded all orders for the allow- ance of money from the county treasury, to whom made, and on what account, dating, numbering, and indexing the same through each year. 3. A "road book," containing all proceedings and adjudications relating to the establisliment, maintenance, change, and discontinuance of roads, road dis- tricts, and overseers thereof, their reports and accounts. 4. A " franchise book," containing all franchises granted by them, for what puri^ose, the length of time and to whom granted, the amount of bond and license tax required. 5. A " warrant book," to be kept by the county auditor, in which must be entered, in the order of drawing, all warrants drawn on the treasury, with their number and reference to the order on the minute book, with the date, amount, on what account, and name of payee. 4032. Ji'i'f/idar vieelinf/sji.rcd. Sec 4032. The regular meetings of the boards of supervisors must be held at their respective county seats on the first Mondays in May, August, Novem- 522 GOVERNMENT OF COUNTIES. 4032-404G ber, and February of eacb year, and must continue from time to time until all the business before them is disposed of. Such other meetiiiys must be lield, to canvass election returns, equalize taxation, and other purposes, as are pre- scribed in this code or provided for by the board. 4033. Other r'egidar meetings may be fixed. Sec. 4033. In the counties of the first and second classes additional regular meetings, not exceeding two in each year, may be provided for, fixed, and held for the transaction of business by an order duly entered of record, in which must be sjDecified the character of business to be transacted at such additional regular meetings, and none other than that specified must be transacted. Notice of the order fixing such additional meetings must be published for four weeks, in a paper published in the county, before the ordinance is effective. 4034. Sj:>ecial meetings, how called. Sec. 4034. If at any time after the adjournment of a regular meeting the business of the county requires a meeting of the board, a special meeting may be ordered by a majority of the board. The order must be entered of record, and five days' notice thereof must, by the clerk, be given to each member not joining in the order. The order must specify the business to be transacted, and none other than that specified must be transacted at such special meeting. 4035. Ileetings and r^ecords jniblic. Sec. 4035. All meetings of the board must be public, and the books, records, and accounts must be kept at the office of the clerk, open at all times for public inspection free of charge. ARTICLE II. GENERAL PERMANENT POWERS. 4046. General pervianeni poioers. Sec 4046. The boards of supeiwisors, in their respective counties, have juris- diction and j)Ower, under such limitations and restrictions as are prescribed by law: To supervise official conduct of county officers. 1. To supervise the official conduct of all county officers, and officers of all districts and other subdivisions of the county charged with assessing, collect- ing, safe keeping, management, or disbursement of the public revenues; see that they faithfully perform their duties; direct prosecutions for delinquencies; and when necessary, require them to renew their official bonds, to make reports, and to present their books and accounts for inspection. To district county. 2. To divide the counties into townships, school, road, and other districts required by law, change the same and create others, as convenience requii-es. To create election precincts. 3. To establish, abolish, and change election precincts, and to appoint inspect- ors and judges of elections, canvass all election returns, declare the result, and issue certificates thereof. Roads, bridges, etc. 4. To lay out, maintain, control, and manage public roads, turnpikes, ferries, and bridges within the county, and levy such tax therefor as authorized by law. Indigent sick. 5. To provide for the care and maintenance of the indigent sick, or the other- wise dependent poor of the county; erect, officer, and maintain hospitals there- 523 4046 POLITICAL CODE. for, or otherwise in-ovide for tlie same; and to levy the necessary tax therefor, lier capita, not exceeding three dollars, and an ad valorem tax not exceeding- one fifth of one per cent. , or either of such levies, when both are not required, on all taxpayers and taxable property of the county. To provide county farm. G. To provide a farm in connection with the county hospital, and make regulations for working the same. To proi'ide rooms for count ij jnirposes. 7. "When there are no necessary county buildings, to provide suitable rooms for county pui-poses. Acquire property for the county. 8. To purchase, receive by donation, or lease any real or personal property necessary for the use of the county, preserve, take care of, manage, and control the same; but no jDurchase of real i^roi^erty must be made unless the value of the same has been previously estimated b^' tliree disinterested citizens of the county, appointed by them for that i3urpose, and no more than the ajDpraised value must be paid therefor. Provide county buildings. 9. To cause to be erected and furnished a court-house, jail, hospital, and such other jiublic buildings as may be necessary. May sell county property. 10. To sell at public auction at the court-house door, after thirty days' i:»re- vious notice given by publication in a newspajDcr of the county, or posted in five public places of the county, and convey to the highest bidder, for cash, any property, real or personal, belonging to the county, j^aying the proceeds into the county treasury for the use of the count}'. Audit accounts of officers. 11. To examine and audit the accounts of all officers having the care, man- agement, collection, or disbursement of moneys belonging to the county, or approjiriated by law or otherwise for its use and benefit. Allow accounts. 12. To examine, settle, and allow all accounts legally chargeable against the county, excejjt salaries of officers, and order warrants to be drawn on the county treasurer therefor, and provide for the issuing of the same. Levy tax for current expenses. 13. To levy such tax annually on the taxable proj^erty of the county as may 1)6 necessary to defray the current expenses thereof, including salaries other- wise unprovided for, not exceeding one dollar on every one hundred dollars of value for any one year; and to levy such taxes as arc required to be levied by special or local statutes. Board (f Cfjualization. 14. To equalize the assessments. To direct h'yal proceedings. lo. To direct and control the prosecution and defense of all suits to which the county is a party. To inHure property. 10. Tu insure the county buildings in the name of and for the benefit of the county. To grant franchises. 17. To grant licf-nses and franchises, as provided by law, for constructing, keeping, and taking t(dls on roads, bridges, ferries, wharves, chutes, and piers. 524 GOVERNMENT OF COUNTIES. 404G-4047 Plx compmHation of officers. 18. To fix the compensation of all county officers not othenvise in this code or by general or special law fixed, and provide for the payment of the same. To fill vacancies. 19. To fill by appointment all vacancies that may occur in county or town- ship offices, except those of county judge or supervisor. To ordain hccdlli regidations. 20. To adapt to the county the provisions in this code, for the preservation of the health of San Francisco or Sacramento, for such limited time as they may deem proper, and to provide for the exjienses thereof. To contract for printing. 21. To contract for the county printing, and provide books and stationery for county officers. To publish proceedings. 22. At the adjournment of each session of the board to cause to be published in a newspaper or otherwise a fair statement of all their proceedings, and semi- annually a statement of the financial condition of the county. 3Iay ordain certain regulations. 23. To make regulations for the destruction of gophers, squirrels, other wild animals, and noxious weeds, and to levy a special tax of not exceeding three cents on each one hundred dollars of taxable property, wherewith to pay rewards therefor. To make regulations for the protection of game, fish, and shellfish, and for the prevention of injuries to sheep by dogs, and to tax dogs, and direct the application of the tax. "When such regulations are made as provided in this section relating to game and fish, the laws of the state for the protection thereof are suspended in such county. 3Iay ordain rides to govern hoard. 24. To make and enforce such rules and regulations for the government of their body, the preservation of order, and the transaction of business, as may be necessary. May provide a seal. 25. To adopt a seal for their board, a description and impression whereof must be filed by their clerk in the offices of the county clerk and secretaiy of state. May do all other acts required or necessary. 26. To do and perform all other acts and things required by law not in thi.s title enumerated, or which may be necessary to the full discharge of the duties of the chief executive authority of the county government. 4047. Powers of hoard of supervisors. Sec. 4047. The board of supervisors shall have power to direct the sheriff to attend in person, or by deputy, all the meetings of the board, to preserve order, serve the notices or citations, as directed by the board. And the board shall have the same power to punish for contempt, by fine and imprisonment, as is now exercised and allowed by law to county courts, to require obedience to their citations, and decorum in their meetings. [:Seio section, ai^proved March 18, 1874; Amendments l^l^-l, 172; took effect from passage. 4047. Contracts, how made. Sec. 4047. All contracts for: 1. County printing; 2. Books and stationery; and, 3. Supplies for county institutions; must be made with the lowest bidder; 525 4047-4071- * POLITICAL CODE. and after ten days' public notice that such contract Avill be let, the bidding must be by sealed in'oposals. \New section, approved Mirch 30,1874; Amendments 1873-4, 5G; took effect Jidy G, 1874. ARTICLE III. OTHEn POWERS AND RESTRICTIONS. 4064. Provide appliances for holding elections. Sec. 40G4. The board must provide all poll lists, poll books, blank returns and certificates, proclamations of elections, and other appropriate and neces- sary aj^iiliances for holding all elections in the county, and allow reasonable charges therefor, and for the transmission and return of the same to the proper officers, 4065. Certijicates issued as board of canvassers. Sec 40G5. Whenever, as canvassers, the board of supervisors have declared the residt of an election held in the county, certificates must be by their clerk is.sued to all persons elected to a county office or to a township or district office therein, and such other certificates must be made out and transmit,ted as required by the title relative to "Elections." 4066. Appointments must be made on petition. Sec 40G6. No appointment to fill a vacancy in office must be made by the board except upon petition, signed by at least thirty qualified electors of the county, if for a county office, or by not less than fifteen of the qualified electors of the township or district, if for a township or district office. 4067. Power to require attendance of ivitnesses. Sec. 40G7. The board may, by their chairman or the chairman of any com- mittee, issue subpcenas to compel the attendance of any person and the pro- duction of ail}- books or papers relating to the affaii's of the county, for the puri^o-se of examination upon any matter within their jurisdiction. 4068. Kraminalion of witnesses. Sec 4UG8. A witness is bound to attend, when served, and to answer all questions which he would be bound to answer in the same case before a court of justice. Disobedience to the subpoena, or to an order to attend, or to tes- tify, may be enforced by the board, and for that purjwse the board has all the jjowers conferred by, and the witness is subject to all the provisions of, Chap- ter II, Title III, Part IV, of the Code of Civil Procedure. [See post, 11,985.] 4069. Officers and icilnesscs not to be prepaid. Sec 40G!). Neither the officers serving subpoenas nor the witnesses subpoenaed to testify in relation to matters of j)ublic concern before the board of super- visors are entitled to have their fees prepaid, but officers must serve the subpcenas and witnesses must attend without their fees being prepaid. The board must alleen created which, added to the salaries of county officers, and other esti- mated liabilities fixed by law for the remainder of the year, equal in the aggre- gate the revenue of the cminly for current expenses, no further allowance of any actcounts must be made. 4071. Count ij not to pi'eKrid crrlain claims against county. Sec. 4071. No county officer shall, except for his own service, present any 52G GOVERNMENT OF COUNTIES. 4071-4078 claim, account, or demand, for allowance against the county, nor in any way advocate the relief asked on the claim or demand made b}' another. Any citi- zen and taxpayer of the county in which he resides may appear before the board and oppose the allowance of any claim or demand made against the county. [Amendment approved April 1, 187G; J mendme?i/s 1875-0, (55; (ooke/J'cct sixtieth day after passage.'-"^ 4072. Account, how made and prosecuted. Sec. 4072. The board of supervisors must not hear or consider any claim in favor of an individual against the county iinless an account properly made out, giving all items of the claim, duly verified as to its correctness, and that the amount claimed is justly due, is presented to the board within a year after the last item of the account accrued. 4073. Account must be filed prior to session. Sec. 4073. No account must be necessarily passed upon by the board unless made out as prescribed in the preceding section and filed by the clerk at least one day prior to the session at which it is asked to be heard. 4074. What claims to he rejected — Proceedings on part allowance. Sec. 4074. When the board finds that any claim presented is not payable by the county, or is not a proper county charge, it must be rejected; if they find it to be a proper county charge, but greater in amount than is justly due, the board ma}' allow the claim in part, and draw a warrant for the portion allowed, on the claimant filing a receipt in full for his account. If the claimant is un- willing to I'eceive such amount in full payment the claim may be again consid- ered at the next regular succeeding session of the board, but not afterwards. 4075. Claimant may sue, when, and xohen recover costs. Sec 4075. A claimant dissatisfied with the rejection of his claim or demand, or with the amount allowed him on his account, may sue the county therefor at any time within six months after the final action of the board, but not after- ward; and if in such action judgment is recovered for more than the board allowed, on presentation of the judgment the board must allow and pay the same, together with the costs adjudged; but if no more is recovered than the board allowed, the board must pay the claimant no more than v/aa originally allowed. 4076. What ivarrants must specify; how presented and p^aid. Sec 4076. AVarrants drawn by order of the supervisors on the county treas- ury for the current expenses during each year, must specify the lial)ility for which they are drawn, and when they accrued, and must be paid in the order of presentation to the treasurer. If the fund is insufiicient to pay any war- rant, it must be registered, and thereafter paid in the order of its registration. 4077. In what transactions supervisors not lo he interested. Sec 4077. No member of the board must be interested, directly or indirectly, in any property purchased for the use of the county, nor in any pm-chase or sale of property belonging to the county, nor in any contract made by the board or other person on behalf of the county, for the erection of public buildings, the opening or improvement of roads, or the building of bridges, or for other purposes. 4078. Transfer of application, in lohat cases made. Sec 4078. Whenever an application is made to the board for an order, fran- chise or license, relating to any toll road, bridge, ferry, wharf, chute, pier or other subject over which the board has jurisdiction, in which a majority of the board are not disinterested, the application, by order of the board, must be (a) The original section consisted of the last sentence alone. 527 4078-4085 POLITICAL CODE. transfen-ed to the l.ioard of supervisors of an adjoining county; tlie clerk of the board must thereupon certify the application and all orders and papers relating thereto to the board to ^vhich tlie transfer is ordered; and thereafter the board to ^Yhich the same is certified has full jurisdiction to hear and determine the application. In the cases mentioned in this code wherein the county judge may act for an interested supervisor, no transfer of the application need be made unless the judge is also interested. 4079. yolices, how given. Sec. -4079. All pubHc notices of proceedings of, or to be had before, the board, not otherwise specially provided for, must be posted at the court-house door, and in each election precinct in the county. [Amendment, approved March 30, 1874; Amendments 1873-4, 56; took effect July Q>, 1874.^'' 4080. Provide for cultivating sltade and ornamental trees. Sec. 4080. The board, under such regulations as they may adopt, must en- courage the planting and jn-eservation of shade and ornamental trees on the public roads and highways, and on and about the public grounds and buildings of the county, and pay to persons planting and cultivating the same, for every living tree thus planted, at the aye of four years, the sum of one dollar. 4081. Hequire assessqrs to report statistics. Sec 4081. The board must require assessors to report to the surveyoi'-general annually a time statement of the agricultural and industrial pursuits and j^rod- ucts of the county, with such other statistical information as they may by ordinance direct, and enforce obedience of the assessor thereto by deducting such i^roportion of his compensation as assessor as to them may seem a2:)propri- ate, for a failure to comply with the order. 4082. Claims in favor of supervisors. Sec 4082. All claims against the county presented by members of the board of supervisors for per diem and mileage or other service rendered by them, must be verified as other claims, and must state that the service has been actu- ally rendered. 4083. Annual statement, when made and what to contain. Slc. 4083. The board must have prej^ared b}- the clerk, and when he is not also auditor then by that officer, and under their direction, prior to their an- nual August meeting, a statement showing: 1. The indebtedness of the county, funded and floating, stating the amount- of each class and the rate of interest borne by such indebtedness or any j^art thereof; 2. A concise desci-iption of all iiroperty owned by the county, with an approx- imate estimate of the value thereof, and the amount of cash in the county treas- ury and its several funds. 4084. Jtrceive and apphj donations of land, etc., to specific purposes. Sec 4084. The board must receive from the United States or other sources, lands and other property gi'anted or donated to the county for the purpose of aiding in the erection of county buildings, roads, bridges, or other specific pur- I>oses, and may use the same therefor, and may provide for the sale of the same ani,.ipLr pub- and at two other public nlates in tlie county." Uubcd In tbe county; if tUcrelBDOBurh utwhpnper, then 528 GOVERNMENT OF COUNTIES. 4085-4103 county, for use as public highways for rafting and lioating himhor, when such streams are not declared by law to be and are not in fact navigable for conuner- cial purposes, and provide regulations for the use thereof; but no regulations of the board, nor improvements directed, must in any manner interfere with the private rights or privileges of riparian owners, miners or others. 4036. What may be recovered on bond. Sec. 4086. Any supervisor who neglects or refuses to perform any duty im- posed on him, without just cause therefor, or who willfully violates any law pro- vided for his government as such officer, or fraudulently or corruptly perfonns any duty imjiosed on him, or willfully, fraudulently, or corruptly attempts to perform an act, as supervisor, unauthorized by law, in addition to the penalty provided in the Penal Code, forfeits to the county five hundred dollars for every such act, to be recovered on his official bond, and is further liable on his official bond to any j)erson injured thereby for all damages sustained. 4087. Chapter does not apply to San Iranciaco. Sec. 4087. This chapter does not apply to the city and county of San Fran- cisco. CHAPTEE III. COUNTY OFFICERS. Aeticle I. Genesax, Provisions 4101 II. County Judge 41 34 III. County Tkeasuekr 4144 IV. Sheriff 4175 V. County Clerk ... 4204 VI. County Auditor 4215 VII. County Recorder 4234 VIII. District Attorney 4256 IX. County Surveyor 4268 X. Coroner 4285 XI. Assessors, Tax Collectors, School Superintendent, Public Adminis- trator, AND Commissioner of Highways 4300 XII. Constables, Justices of the Peace, and Inferior Officers 4314 ARTICLE I. GENERAL PROVISIONS. 4101. Age, citizenship, and residence, as to county officers. Sec 4101. No person is eligible to a county office who at the time of his election is not of the age of twenty-one years, a citizen of the state, and an elector of the county in which the duties of the office are to be exercised. 4102. Same, as to district and township officers. Sec 4102. No person is eligible to a district or township office who is not of the age of twenty-one years, a citizen of the state, and an elector of the dis- trict or township in which the duties of the office are to be exercised or for which he is elected. 4103. County officers enumerated. Sec 4103. The officers of a county are: A county judge; A treasurer; A county clerk; An auditor; A sheriff; A tax collector; A district attoi'ney; 34 " 529 4103-410G POLITICAL CODE. A recorder; Au assessor; A surveyor; A school superintendent; A coroner; A public administrator; A board of supervisors; and —In counties of the first class, for highway purposes, A commissioner of highways, 4104. Tou-)ifeMMirK and hiiiiervlsorR, iiuiKt he of Doc iiil,(r ik xt iifter his election. Every iiSBessor H<-. Jed at the Keiiernl el.iUoii liiSire on the first Monday of March, eighteen hundred and seventy-four, and each township in said county shall thereafter be an assessment district. Township assesso7'S. Sec. 2. There shall be elected by the quahfied electors of each township, at the general election in the year eighteen hundred and seventy-iive, and at each general election thereafter, an assessor for and in each townsLip in said county. Such assessors shall take their office on the first Monday of the month of March following the election. Election and ter'in of office. Sec. 3. There shall be held a special election for township assessors, as juo- vided for in this act, in said county, on the third Saturday of Februaiy, eighteen hundred and seventy-four, which election shall be subject to the general election law; j^rovided, however, that only five days' notice of said special election shall be required, and that the cojues of the great register used at the general election of eighteen hundred and seventy-three, shall be used in said special election. The assessors so elected shall take their office on the first Monday of March, eighteen hundred and seventy-four, and hold the same until the first Monday of March, eighteen hundred and seventy-six, and until their successors are elected and qualified. Qualification. Sec. 4. ,The township assessors shall give bonds and qualify as other town- ship officers, and each bond shall be in such sum as the board of supervisors of the county shall fix. Duties. Sec 5. The township assessors, in their several townships, shall discharge all the duties, and be subject to all the liabilities, which are or may hereafter be required of county assessors. They shall, in their respective townships, collect all poll taxes, for which they shall receive ten per cent, of the amount so col- lected; and, as assessors, they shall further receive six dollars each per day for each day actually employed in making the assessment, and for each day of attendance on the board of equalization, when their attendance is required by said board. For collecting personal property taxes, they shall receive the same compensation as is allowed by law to the tax collector for similar services. They shall have jDower to api)oint a deputy, or deputies, the number of whom, and their compensation, shall be fixed by the board of supervisors; jn-ovided, such deputies shall not receive compensation to exceed five dollars per day for each day actually employed in making the assessment. Sec 6. All acts in conflict herewith are hereby repealed, and this act shall take eflect immediately. An Act regulating township offices iu Tuolumne county [providing for but one justice of the peace and one constable in each township], aj^proved March 18, 1874; 1873-4, 453. An Act to provide for an additional justice of the peace and constable for the township and county of Los Angeles, approved December 22, 1875; 187o-G, 4. An Act regulating certain township offices in the county of Calaveras [pro- viding for one justice of the peace and one constable in each township after January 1, 1878 J, approved February 28, 187G; 1875-G, 78. [The following special acts in reference to supervisors may be referred to as in force in the counties specified:] San Diego count]). An Act to provide for the government of the county of San Diego, api^roved March 2, 1872; 1871-2, 191. 533 4109 POLITICAL CODE. An Act, to provide for the governmeut of the county of San Diego, approved Mai-eh 30^ 1876; 1875-G, 558. Del yorfe count i/. An Act to change the manner of electing supervisors in the county of Del Norte, and prescribing the method thereof, approved March 30, 1872; 1871-2, 75G; amended January 2, 187-4; 1873-4, 12. Mendocino county. An Act amendatory of an act relating to the boards of supervisors of the counties of Napa and Mendocino, approved April 4, 18C4, as far as the same applies to or affects Mendocino county, approved January 23, 1874; 1873-4, 33. San Bernardino county. An Act to provide for the election of supenisors in the county of San Ber- nardino, approved February 17, 1874; 1873-4, 111. An Act to fix the compensation of the ^supervisors of San Bernardino county, approved March 27, 1870; 1875-G, 488. Tuolumne county. An Act to prescribe the commencement of the term of supervisors in the county of Tuolumne, approved Februaiy 24, 1874; 1873-4, 154. Napa county. An Act to reorganize the board of supervisors of Napa county and for other puii^oses, approved February 25, 1874; 1873-4, 158; amended March 10, 1874; 1873-4, 329. Placer county. An Act reorganizing the board of supervisors in the county of Placer, and providing for the election of the same, approved March 13, 1874; 1873-4, 347; amended March 28, 1874; 1873-4, 775; amended March 30, 1876; 1875-6, 573. Amador county. An Act in relation to the board of supervisors of Amador county, approved March 18, 1874; 1873-4, 443; affected by an act to regulate salaries, etc., ap- proved March 20, 1876; 1875-6, 370. San Joaquin county. An Act relating to the supervisors of San Joaquin county; approved March 18, 1874; 1873-4, 466. San Mateo county. An Act to prescribe the duties and provide the salary of certain offices of San Mateo county, to authorize the issue of bonds for road purposes, and other matters relating thereto, approved March 18, 1874; 1873-4, 479; amended March 28, 1874; 1873-4, 779. Santa Clara county. An Act in relation to the county officers, of Santa Clara county, their fees, and salaries, approved February 9, 1876; 1875-6, 35. Tehama county. An Act to redi«trict the county of Tehama, and to reorganize the board of Kui)en-isor8 in and for said county, approved March 30, 1874; 1873-4, 816. El Dorado county. An Act to organize the board of supervisors and define their duties in the connty of El Dorado, api)rovcd March 30, 1874; 1873-4, 872. An Act to create a boiird An Act couceruing certain officers? iu the countj' of Merced. Approved January 10, 1872; 1871-2, 21. [This act fixes the bonds of the ])ublic administrator and coroner of the county of Merced at five thousand dollars each, provided the board of super- visors might order special bonds in addition thereto, if iu their ju'dgment such additional bonds become necessary.] An Act to fix the bonds of the sheriff of the county of Contra Costa. Approved February 26, 1872 ; 1871-2, 158. [This act fixes the bond of the sheriff of Contra Costa county at twenty thousand dollars.] An Act concerning official bond of public administrator of Contra Costa county. Approved March 1, 1872; 1871-2, 183. [This act fixes the bond of the public administrator of Contra Costa county at five thousand dollars, provided the board of supervisors may order a special bond in addition thereto, if in their judgment such additional bond becomes necessary.] [The ofiicial bonds of officers in El Dorado county were fixed by the fee bill of March 27, 1872; 1871-2, 594.] An Act to fix the bonds of the tax collectors of Fresno, Tulare, and Kern counties. Approved January 28, 1876; 1875-6, 16. [This act provides that the boards of suj)ervisors of the counties named in the title shall fix the amount of the bonds of the tax collectors in the counties named, provided that no one of said bonds shall be fixed in a sum less than fifty thousand dollars or greater than one hundred thousand dollars.] An Act fixing the bonds of the county treasurers of the counties of Mariposa, Tuolumne, and Calaveras. Approved January 28, 1876; 1875-6, 17. [This act exempts the counties named from the provisions of section 4122 of the Political Code, as amended March 30, 1874, so far as relates to the county treasurers, and fixes their bonds at twenty-five thousand dollars.] An Act in relation to the offices of coroner and public administrator of the county of Santa Cruz. Approved March 3, 1876; 1875-6, 121. [This act was to legalize the official bond and oath of the coroner and public administrator of the county named, elected at the general election of 1875.] (a) The original section in the fourth subdivision instead of "eighty" had " fifty," and instead of "sixty" it had "twenty." 537 4122-4U4 POLITICAL CODE. An Act to fix the penal sum of the official bond of the treasurer of the eouuty of Alpine, Approved March C, 1876; 1875-6, 140. [This act fixed the amount of the bond referred to at fifteen thousand dollars. ] An Act to fix the amount of the bonds of the county treasurer of Modoc and Lassen counties. Approved March 8, 1875; 1875-6, 154. [This act fixed the %mouut of the bond of the treasurer of Modoc at thirty thousand dollars, and that of the treasurer of Lassen at forty thousand dollars. ] An Act to fix the salary and bond of the assessors of the counties of Tulare and Kern. Approved March 9, 1876; 1875-6, 172. [This act provided that the bonds referred to should be fixed from time to time "by the board of supervisors of said counties, in such sum as they shall deem necessary," but "said bond" is not to be fixed at a less sum than four thousand dollars.] Au Act to jirovide for the government of the county of San Diego. Approved March 30, 1876; 1875-6, 558. * [This act provided that the board of supervisors should fix the amount of the bonds of all county, district, and toAvnship officers.] 4123. Wlien amount of bond is not fixed by law. Sec. 4123. When the amount of the bond to be given by any county or town- ship officer is not fixed by law, the amount must be fixed by the board of super- visors. 4124. Other provisions relating to county officers. Sec. 4124. Other provisions relating to the different classes of officers are contained in Chapter VII, Title I of Part III of this Code. [See ante, 841.] ARTICLE II. COUNTY JUDGE. 4134 . Duty of cou n ty j u dge . Sec. 4134. The county judge must: 1. Perform the duties of a magistrate; 2. Hold county and probate courts; 3. Take and certify acknowledgments to the execution of instruments in writing, and grant certificates to the official character of the county clerk; 4. Certify to the ownership of wrecked property or its proceeds; and 5. Perform such other duties as are prescribed in any of the laws of this state. ARTICLE III. COUNTY TKEASUKEK. 4144. /hily of couuty treasurer. Sec. 4144. The county treasurer must: 1. Receive all moneys belonging to the county, and all other moneys by law directed to be paid to him, safely keep the same, and apply and pay them out, rendering account thereof as rcfjuired l)y law; 2. File and keep the certificates of the auditor delivered to him when moneys are paid into the treasury; 3. Keep an account of the receipt and expenditure of all such moneys, in books provided lot the purpose; in which must be entered the amount, the time when, from whom, and on what account all moneys were received by him; 538 GOVEENMENT OF COUNTIES. 4144-4151 the amount, time -when, to whom, and ou ^vhat account all disbursements were made by him; 4. So keep his books that the amounts received and paid out on account of sei^arate funds or specific appropriations are exhibited in separate and distin(;t accounts, and the whole receijits and expenditures shown in one general or cash account; 5. Enter no moneys received for the cun-ent year on his account with the county for the past fiscal year, until after his annual •settlement for the past year has been made with the county auditor; 6. Disburse the county moneys only on county warrants issued by the county auditor, based on orders of the board of supervisors, or as otherwise provided by law. 4145. To receive no money, except on certificate of auditor. Sec. 4145. He must receive no money into the treasury unless accompanied by the certificate of the auditor provided for in section 4217. 4146. Must receipt for money. Sec. 4146. When any money is paid to the county treasurer he must give to the person joaying the same a receipt therefor, which must forthwith be deposited with the county auditor, who must charge the treasurer therewith and give the person paying the same a receipt. 4147. Ilode of redeeming warrants. Sec 4147. "When a warrant is presented for payment, if there is money in the treasui-y for that purpose, he must pay the same, and write on the face thereof "Paid," the date of payment, and sign his name thereto. 4148. Registry of loarrants, tvhen no funds. Sec. 4148. When any warrant is presented to the treasurer for payment and the same is not paid for want of funds, the treasurer must indorse thereon, " Not paid for want of funds," annexing the date of presentation, and sign his name thereto; and from that time until paid the warrant bears seven per cent, per annum interest. 4149. Notice of redemption of ivarrants. Sec. 4149. When there are sufficient moneys in the treasury to pay the wan-ants drawing interest, the treasurer must give notice in some newspaper published in his county, or, if none is published, then by written notice posted upon the court-house door, stating therein that he is ready to pay such waiTants. From the first publication or posting of such notice such warrants cease to draw interest. 4150. What it must state, and hoiv published. Sec 4150. In advertising warrants under the provisions of this section in any newspaper, the treasurer must not publish the warrants in detail, but give notice only that county warrants presented for payment prior to such a date, stated in the notice, are payable. When a part only of the warrants presented for pay- ment on the same day are payable, the treasurer must designate such payable warrants in the advertisement. 4151. Priority in payment of warrants. Sec. 4151. Warrants drawn on the treasury and i^roperly attested are entitled to preference as to payment out of moneys in the treasury properly applicable to such warrants according to the priority of time in which they were jiresented. The time of presenting such warrants must be noted by the treasurer, and upon the receipt of moneys into the treasury not otherwise appropriated, he must set apart the same or so much thereof as is necessary for the payment of such warrants. 539 4152-4159 POLITICAL CODE. 4152. Funds reserved fiixtij days therefor. Sec. 4152. Slioukl such warrants not be re-presented for payment within sixty days from the time of the notice hereinbefore provided for is given, the fund set aside for the paj'ment of the same must be by the treasurer applied to the paAnnent of unpaid warrants next in order of registiy. The board of super- visoi-s may, on application and presentation of warrants properly indorsed, Avhich have been advertised, pass an order directing the treasurer to pay them out (.)f any money in the treasury not otherwise appropriated. 4153. Ma^t note the interest paid on loarrant. Skc. 4153. When the treasurer pays any warrant on which any interest is due he must note on the wan-ant the amount of interest paid thereon, and enter on his account the amount of such interest distinct from the principal. 4154. Settlements, when and hotc made — mouthhj and annually. Sec. 4154. The treasurer must settle his accounts relating to the collection, care, and disbursement of public revenue, of whatsoever nature and kind, with the auditor, on the first Monday of each month. For the purpose of making such settlement he must make out a statement, under oath, of the amount of money or other property received prior to the period of such settlement, the sources whence the same was derived, the amount of payments or disburse- ments, and to whom, with the amount remaining on hand. He must, in such settlements, deposit all wan-ants redeemed hy him and take the auditor's re- ceipt therefor. He must also make a full settlement of all accounts with the auditor annually on the first Monday of January, in the presence of the super- visors, who have a supervisory control thereof. 4155. Bi'port to hoard of supervisors each session. Sec. 4155. Each count}' treasurer must make a detailed report, at every reg- ular meeting of the board of supervisors of his count}', of all moneys received Ijy him and the disbursement thereof, and of all debts due to and from the county, and of all other proceedings in his office, so that the receipts into the treasury and the amount of disbursements, together with the debts due to and from the county, may clearl}' and distinctly appear. 4156. Pi'ttalfy/or not reporting. Si.i'. 415G. If any county treasurer neglects or refvises to settle or report, as rcfpiired in sections 4154, 4155, he forfeits and must pay to the county the sum of five hundred dollars for every such neglect or refusal, and the board of supervisors must institute suits for the recovery thereof. 4157. When he must sue district attorney. Si.c. 4157, If the district attorney refuses or neglects to account for and pay '>ver money received by him, as required by the fifth subdivision of section 425G, tlie county treasurer must bring an action against him for the recovery thereof in the name of the county, and may recover in such action, in addition to the amount so received, fifty per cent, thereon by way of damages. 4158. When he inuxt sue coroner. Sic. 4158. If the coroner, or any justice of the peace acting as coroner, fails to deliver to the treasurer within thirty days after any inquest upon a dead body, all money and property found upon such body, unless claimed in the meantime by tlie public administnitor or other legal representative of the decedent, as required liy section 42H7, the treasurer must proceed against the coroner, or justice acting as coroner, to recover the same by civil action in the name of the county. 4159. What hr nvi.'^t do vith prnpcrty rt'ceived from coroner. Sec. 415'J. The treasurer, ui)on receiving from the coroner or justice acting 540 GOVERNMENT OF COUNTIES. 4ir,9-il7G as coroner, money found on a dead l)ody, must place it to the credit of the county. On receiving- other property in like manner, he must within thii-ty days sell it at public auction upon reasonable public notice, and must in like manner place the proceeds to the credit of the county. 4160. 3Ioney fi'om coroner in treasury may he demanded tvifhin six years. Sec. 41G0. If the money in the treasury is demanded within six years by the legal representatives of the decedent, the treasurer must pay it to them, after deducting the fees and expenses of the coroner and of the county in relation to the matter; or the same may be so paid at any time thereafter upon the order of the board of supervisors. 4161. Treasurer must not loan public money or make general deposit. Sec. 41G1. The county treasiirer must keep all moneys belonging to this state or to any county of this state in his own possession until disbursed according to law. He must not place the same in the possession of any person, to be used for any purpose; nor must he loan or in any manner use or permit any person to use the same, except as provided by law; but nothing in this section prohibits him from making special deposits for the safe keeping of the public moneys. 4162. Su2:>ervisors may suspend treasurer. Sec. 4162. Whenever an action based upon official misconduct is commenced against anj' county treasurer, the supervisors may, in their discretion, suspend him from office until such suit is determined, and may appoint some person to fill the vacancy. 4163. No commissions alloived. Sec 4163. In case of the death of any county treasurer, his legal representa- tives must deliver up all official moneys, books, accounts, papers, and documents which come into their possession. No percentage must be allowed to the treas- urer on any money by him received from his predecessor in office, or from the legal representatives of such predecessor. 4164. Books and vouchers subject to inspection. Sec. 4164. The books, accounts, and vouchers of the treasurer are at all times subject to the inspection and examination of the board of supervisors and grand jury. 4165. Treasurer must permit auditor to examine his books, etc. Sec. 4165. The treasurer must permit the county judge and auditor to examine his books and count the money in the treasury whenever they may wish to make an examination or counting. ARTICLE IV. SHEKIFF. 4175. " Process" and "notice" defined. Sec 4175. "Process," as used in this article, includes all writs, warrants, summons, and orders of courts of justice or judicial officers. " Notice" in- cludes all papers and orders (except process) required to be sei-ved in any pro- ceeding before any court, board, or officer, or when required by Iuav to be served independently of such proceeding. 4176. Duties of sheriff . Sec 4176, The sheriff must: 1. Preserve the peace; 2. Arrest and take before the nearest magistrate, for examination, all persons who attempt to commit or who have committed a public offense; 3. Prevent and suppress all affrays, breaches of the peace, riots, and insur- rections which may come to his knowledge; 541 41TC-4182 POLITICAL CODE. 4. Attend all courts, excejit justices', probate, and jwlice courts, at their respective terms, held wilhiu Lis county, and obey their lawful orders and direc- tions; 5. Command the aid of as many male inhabitants of his county as he may think necessary in the execution of these duties; G. Take charge of and keep the county jail and the prisoners therein; 7. Indorse upon all process and notices the year, month, day, hour, and minute of reception, and issue therefor to the person delivering it, on payment of fees, a certificate showing the names of the jjarties, title of paper, and time of reception; 8. Serve all process and notices in the manner prescribed by law; 9. Certify under his hand upon process or notices the manner and time of service, or, if he fails to make service, the reasons of his failure, and return the sanie without delay. 4177. Seri'ice and execution of process. Sec. 4177. "SVhen jjrocess or notices are returnable to another county, he may inclose such process or notice in an envelope, addressed to the officer from whom the same emanated, and deposit it in the post-office, prepaying postage. • 4178. Ji'txrn prima facie evidence. Si:c. 4178. The return of the sheriff upon process or notices is prima facie evidence of the facts in such return stated. [Amendment, approved 3IarcJb 30, ls74; Amendments 1873-4, 57; took effect July G, 1874.^"^ 4179. Penaltij for non-return of process, etc. Shc. 4179. If the sheriff does not return a notice or jorocess in his possession with the necessaiy indorsement thereon without delay, he is liable to the party aggrieved for the sum of two hundred dollars and for all damages sustained by him. 4180. Liable for refusing to levy. Sec 4180. If the sheriff to whom a writ of execution is delivered neglects or refuses, after being required by the creditor or his attorney, to levy ujion or sell any jiroperty of the party charged in the writ which is liable to be levied upon and sold, he is liable to the creditor for the value of such property. 4181. Damayi'sfor r lately, in large and well-bound sei)arate books, in a fair hand: 1. Deeds, grants, transfers, and mortgages of real estate, releases of mort- gages, powers of attorney to convey real estate, and leases which have been acknowledged or proved; 54G GOVERNMENT OF COUNTIES. 423^ 4230 2. Mortgages of personal property; 3. Certificates of marriage and niamage contracts; 4. Wills admitted to probate; 5. Official bonds; 6. Notices of mechanics' liens; 7. Transcripts of judgments which b}' law are made liens upon real estate; 8. Notices of attachments upon real estate; 9. Notices of the pendency of an action afitecting real estate, the title thereto, or possession thereof; 10. Instruments describing or relating to the separate property of married women; 11. Notices of pre-emption claims; 12. Births and deaths; and, 13. Such other writings as are required or permitted by law to be recorded. 4236. Indexes to he kepi by recorder. Sec. 4236. Every recorder must keep*: 1. An index of deeds, grants, and transfers, labeled "Grantors," each page divided into four columns, headed resi^ectively: "Names of grantors," "Names of grantees," "Date of deeds, grants, or transfers," and "Where recorded." 2. An index of deeds, labeled "Grantees," each page divided into four col- umns, headed respectively: "Names of grantees," "Names of grantors," "Date of deeds, grants, or transfers," and "Where recorded." 3. Two indexes of mortgages, labeled respectively: "Mortgages of real property," "Mortgages of personal property," with the pages thereof divided into five columns, headed respectively: "Names of mortgagors," "Names of mortgagees," "Date of mortgages," "Where recorded," "When discharged." 4. Two indexes of mortgagees, labeled respectively: "Mortgagees of real property," "Mortgagees of personal property," with the pages thereof divided into five columns, headed respectively: "Names of mortgagees," "Names of mortgagors," "Date of mortgages," "Where recorded," "When discharged." 5. Two indexes of releases of mortgages, labelled res2:)ectivelv : " Releases of mortgages of real property — mortgagors," "Releases of mortgages of personal property — mortgagors," with the pages thereof divided into six columns, headed resj)ectively : "Parties releasing," ',' To whom releases are given," "Date of releases," "Where releases are recorded," "Date of mortgages released," "Where mortgages released are recorded." 6. Two indexes of releases of mortgages, labeled respectively : "Releases of mortgages of real property — mortgagees," "Releases of mortgages of personal property — mortgagees," with the pages thereof divided into six columns, headed respectively: "Parties whose mortgages are released," "Parties relea.sing," "Date of releases," "Where recorded," " Date of mortgages released," "Where mortgages released are recorded." 7. An index of powers of attorney, labeled " Powers of attorney," each page divided into five columns, headed respectively: "Names of parties executing the powers," " To whom powers are executed," " Date of powers," " Date of recording," " W^here powers are recorded." 8. An index of leases, labeled " Leases," each page divided into four columns, headed respectively: " Names of lessors," " Names of lessees," "Date of leases," " When and where recorded." 9. An index of leases, labeled "Lessees," each page divided into four col- umns, headed respectively: " Names of lessees," " Names of lessors," " Date of leases," " When and where recorded." 547 423G-4237 POLITICAL CODE. 10. An index of marriage certificates, labeled "Marriage certificates— men," each page divided into six columns, headed respectively: " Men mamed," "To whom married," " '^A'hen mariied," " By whom married," "Where married," •• Where certificates are recorded." 11. An index of marriage certificates, labeled "Marriage certificates- women," each page divided into six columns, headed respectively: "Women married" (and under this head placing the family names of the women), " To whom married." "When married," " By whom married," "Where married," " Where certificates are recorded." 12. An index of assignments of mortgages and leases, labeled "Assignments of mortgages and leases — assignors," each page divided into five colimins, headed resj^ectively: "Assignors," "Assignees," "Instruments assigned," " Date of assignments," " When and where recorded." 13. An index of assignments of mortgages and leases, labeled "Assignments of mortgages and leases — assignees," each page divided into five columns, headed respectively: "Assignees," ''•Assignors," "Instruments assigned," " Date of assignments," " When and where recorded." 14. An index of wills, labeled "Wills," each page divided into four columns, headed respectively: "Names of testators," "Date of wills," "Date of pro- bate," "When and where recorded." 15. An index of official bonds, labeled "Official bonds," each page divided into five columns, headed resjiectivelj^: " Names of officers," "Names of offices," "Date of bonds," "Amount of bonds," " AVhen and where recorded." 16. An index of notices of mechanics' liens, labeled "Mechanics' liens," each page divided into three columns, headed respectively: "Parties claiming liens," "Against whom claimed," "Notices when and where recorded." 17. An index to transcrij:)ts of judgments, labeled "Transcripts of judg- ments," each page divided into seven columns, headed respectively: "Judg- ment debtors," "Judgment creditors," "Amount of judgments," "Where re- covered," "AVhen recovered," "When transcript filed," "When judgment satisfied." Iti. An index of attachments, labeled "Attachments," each page divided into six columns, headed respectively: "Parties against whom attachments are issued," "Parties issuing attachments," "Notices of attachments," "When re- corded," "Where recorded," "When attachments discharged." 19. An index of notices of the pendency of actions, labeled "Notices of actions," each page divided into three columns, headed respectively: "Parties to the actions," "Notices when recorded," "Where recorded." 20. An index of the sejmrate property of married women, labeled "Separate property of married women," each page divided into five columns, headed respectively: "Names of married women," "Names of their husbands," "Nature of instruments recorded," "When recorded," " Where recorded." 21. An index of pre-emption claims, labeled "Pre-emption claims," each j.age divided into five columns, headed respectively: "Claimants," "Notices," " WJjen received," " Date of notices," " When and wLere recorded." 22. An index to the register of births and deaths. 4237. Ilecords of cerlifwates of sale. Sko. 4237. The recorder must keep in his office a book to be called "Certif- icates of sale," and record therein all certificates of sale of real estate sold under execution or under order made in any judicial proceecling. He must also prepare an index tliereto, in which in separate columns he must enter the names of the i)]aintiff in the execution, the defendant in the execution, the pur- chaser at the sale, and the date of the sale. n48 GOVERNMENT OF COUNTIES. 4238-4244 4238. To record decrees of parti (ion. Sec. 4238. The recorder must file uiid record with the record of deeds, f,a-ants, and transfers, certified copies of final judgments or decrees partitioning or affecting the title or j)ossession of real property, any part of -svhich is situate in the county of which he is recorder. 4239. Filing of coprj to imparl ■notice. Sec. 4239. Every such certified cojjy of partition, from the time of the filing the same with the recorder for record, imparts notice to all persons of the contents thereof; and subsequent purchasers, mortgagees, and lienliolders, purchase and take with like notice and effect as if such copy of decree was a duly recoi'ded deed, grant, or transfer. 4240. May keep two or more indexes in name volume. Sec. 4240. The recorder may keep in the same volume any two or more of the indexes mentioned in section 4236, but the several indexes must be kept distinct from each other, and the volume distinctly marked on the outside in such way as to show all the indexes kept therein. The names of the parties in the first column in the several indexes must be arranged in alphal)etical order, and when a conveyance is executed by a sheriff, the name of the sheriff and the party charged in the execution must both be inserted in the index, and when an instniment is recorded to which an executor, administrator or trustee is a j)arty, the name of such executor, administrator, or trustee, together with the name of the testator or intestate, or party for whom the trust is held, must be inserted in the index. 4241. Recorder's duty on receipt of instrument to he recorded. Sec. 4241. When any instrument, paper or notice, authorized by law to be recorded, is deposited in the recorder's office for record, the recorder must indorse upon the same the time when it was received, noting the year, month, day, hour, and minute of its reception, and must record the same without delay, together with the acknowledgments, proofs, and certificates, written upon or annexed to the same, with the plats, surveys, schedule, and other papers thereto annexed, in the order and as of the time when the same was received for record, and must note at the foot of the record the exact time of its reception, and the name of the person at whose request it was recorded. 4242. Recorded instruments to he indorsed. Sec. 4242. He must also indorse upon each instrument, pai)er or notice, the time when and the book and pages in which it is recorded, and must thereafter deliver it upon request to the party leaving the same for record, or to his order. 4243. Recorder to make searches. Sec. 4243. The recorder must, upon the application of any person, and upon the payment or tender of the fees therefor, make searches for conveyances, mortgages, and all other instruments, papers, or notices recorded or filed in his office, and furnish a certificate thereof, stating the names of the parties to such instruments, papers, and notices, the dates thereof, the year, month, day, hour, and minute they were recorded or filed, the extent to which they purjwrt to affect the property to which they relate, and the book and pages where they are recorded. 4244. Liable for neglect of certain duties. Sec. 4244. If any recorder to whom an instrument, proved or acknowledged according to law, or any paper or notice which may by law be recorded, is delivered for record: 1. Neglects or refuses to record such instrument, paper, or notice, within a reasonable time after i-eceiviug the same; or, 549 4244-4256 POLITICAL CODE. 2. Records anv insti-ument, papers, or notices untruly, or in any other man- ner tlinu as hereinbefore directed; or, 8. Neglects or refuses to keep in his office such indexes as are required by tliis article, or to make the proper entries therein; or, 4. Neglects or refuses to make the searches and to give the certificate required by this article; or if such searches or certificate are incomplete and defective in any important particular affecting the property in respect to which the search is requested; or, 0. Altei-s, changes, or obliterates any records deposited in his office, or inserts any new matter therein; — He is liable to the party aggrieved for three times the amount of the dam- ages which may be occasioned thereby. 4245. Fees la be prepaid. Slc. 4245. He is not bound to record any instrument, or file any pajDcr or notice, or furnish any copies, or to render any service connected with his office, until his fees for the same, as jn-escribed by law, are, if demanded, x^aid or tendered. 4246. liecords to he open for- inspection. Si-c. 4240. All books of record, maps, charts, surveys, and other papers on tile in the recorder's office, must, during office hours, be open for the inspection of any person who may desire to inspect them, and may be insjDected without rharge; and the recorder must arrange the books of record and indexes in his office in such suitable 2)laces as to facilitate their inspection. ARTICLE VIII. DISTRICT ATTORNEY. 4256. Dnlies of district attorney. Sec. 4250. The district attorney is the public prosecutor, and must : 1. Attend the district and county courts, and conduct, on behalf of the people, all i)rosecutious for public offenses; 2. Institute proceedings before magistrates for the arrest of persons charged with or reasonably suspected of public offenses, when he has information that rM\ such offenses have been committed; and for that purx^ose, when not engaged .n criminal proceedings in the district or county courts, must attend upon the magistrates in cases of arrest, when required by them, and attend before and rive advice to the grand jury, whenever cases are joresented to them for their • •onsideration; ;i Draw, all indictments, defend all suits brought against the state or his county, prosecute all recognizances forfeited in the courts of record, and all actions for the recovery of debts, fines, penalties, and forfeitures accruing to tlic state or his county; 4. Deliver receipts for money or property received in his official capacity, and file duplicates thereof with the county treasurer; 5. On the first Mondays of January, April, July, and October in each year, file with the auditor an account, verified by his oath, of all moneys received by liim in his ofliciiil ca}(acity during the preceding three months, and at the same lime jiay it over to the county treasurer; ('). Give when required, and without fee, his opinion (in writing) to county, district, and township officers on matters relating to the duties of their respective oflif-es; and, 7. Keej) a register of official business, in which must be entered a note of every action, whether criminal or civil, prosecuted officially, and of the proceedings therein; 8. Perform such otlier duties as are prescribed by law. 550 GOVERNMENT OF COUNTEES. 425G-4275 4257. Legal advispr of supervisors. Sec. 4257, The district attorney is the legal adviser of the hoard of fiupen-isors. He must attend their meetings when required, and must attend and oppose all claims and accounts against the county when he deems them unjust or illegal, 4258. ]\[i(st not act as ait o nicy for claims against his oivn coiinlij. Sec. 4258. The district attorney, except for his own services, must not present any claim, account, or demand for allowance against the county, nor in any way advocate the relief asked on the claim or demand made by another, ARTICLE IX, SUKVEYOR. 4268. County surveyor to make surveys on application made to him. Sec. 42C)8. The surveyor must make any survey that may be required by the order of court, or upon application of any j^erson, keep a correct and fair record of all surveys made by him, number them in the order made progres- sively, and preserve a copy of the field notes and calculations of each survey, indorse thereon its proj^er number, a copy of which, and a fair and accurate plat, together with the certificate of survey, must be furnished by him to any person upon payment of the fees allowed by law. 4269. Surveys of lands in two counties. Sec. 4269. Any person owning or claiming lands which are divided by county lines, and wishing to have the same suiweyed, may apply to the surveyor of any county in which any part of such land is situated, and on such aj^plication being made the surveyor must make the survey, which is as valid as though the lands were situated entirely w^ithin the county. 4270. Uisputes before court concerning title to lands in tico counties. Sec. 4270. "When land, the title to which is in dispute before any court, is divided by a county line, the court making an order of survey may dii'ect the order to the surveyor of any county in which any part of the land is situated. 4271. Courses to be rmi by true meridian. Sec 4271. In all surveys the courses must be expressed according to the tnie meridian, and the variation of the magnetic meridian from the true meridian must be expressed on the plat, with the date of the suiwey, 4272. Surveyor to employ assistants, ichen. Sec 4272. If a party for whom a survey is made does not furnish the chain- men and markers, the surveyor may employ the necessary chainmen and markers, and receive the reasonable hire of all assistance necessarily emiDloyed. 4273. Surveyor to transmit plat and field notes to surveyor-general when required. Sec 4273. Each county surveyor, immediately after making any survey, except surveys of city or town lots, must make out a copy of the field notes and plat, and transmit the same to the surveyor-general, indicating plainly u]>on the plat at what point of any line any river or stream or county line is touched or crossed. He must communicate to the surveyor-general such infoimation con- cerning surveys made by him, and other matters connected with the duties of his office, as may be required. 4274. To assist surveyor-general, when. Sec. 4274. Each county surveyor must, when required, aid and assist the surve3'or-general in making surveys within the county. 4275. When county surveyor is interested in lands, court to appoint some other person. Sec. 4275. When the county sui-^-eyor is interested in any land the title to 551 4275^290 POLITICAL CODE. wbich is in dispute and a survey thereof is necessary, the court must direct the survey to be made by some disinterested j^erson, and the person so appointed is for that purpose authorized to administer and certify oaths. He must return such survey, verified by his afiidavit annexed thereto, and receive for his services the same fees as the county surveyor woukl be entitled to for simihir services. ARTICLE X. CORONER. 4285. Corourr to hold inqued. Si;c. 4285. The coroner must hold inquests as prescribed in Chapter II, Title XII. Part II of the Penal Code. [See post, 14,510.] 4286. Coroner to bury body, tvhen. Sec. 428G. TMien an inquest is held by the coroner, and no other person takes charj^'-e of the body of the deceased, he must cause it to be decently interred; and if there is not sufficient property belonging to the estate of the deceased to l^ay the necessary expenses of the burial, the expenses are a legal charge against the county. 4287. To deliver to county treasurer property, etc., found on body. Sec. 4287. The coroner must, -uithin thirty days after an inquest upon a dead body, deliver to the county treasurer or the legal representatives of the deceased any money or other 2)roi)ei'ty found upon the body. 4288. Auditing accounts of coroner. Sec. 4288. Before auditing or allowing the accounts of the coroner, the super- visors must require him to file with the clerk of* the board a statement in writ- ing, verified by his affidavit, showing: 1. The amount of money or other property belonging to the estate of the deceased person which has come into his possession since his last statement; 2. The disposition made of such property. 4289. Justice of jwace to act as coroner in certain cases. Sec. 4289. If the office of coroner is vacant, or he is absent or unable to atteud, the duties of his office may be discharged by an}' justice of the peace of the county, with the like authority and subject to the same obligations and I'«ii.ilties as the coroner. 4290. Coroner to discharcje duties of sheri//', when. Sec. 4290. In the cases s])ecified in Article IV of this chapter, the coroner must discharge the duties of sheriff. An Ac-t conceruing the attendance of pbj'siciatis and surgeons in certain cases, and to pro- vide payiijeut for making cLemical and post-mortem examinations. Apiiroved February 8, 1872; 1H71-2, 81. Coroner may sumiiion physician, suryeon or chemist. Section 1. The coroner or other officer holding an inquest upon the body of a deceased person may summon a physician or surgeon to inspect the body, or a chemist to make an analysis of the contents of the stomach, or the tissues of tiie body of the deceased, and to give a professional opinion as to the cause of the death. Compensation. Sec 2. Any physicLan, surgeon, or chemist professionally attending as a wit- ness on an inquest, or upon a trial of any person charged with murder or man- slaugliter, or in cases de lunatico inquirendo, as above provided, shall be allowed a reasonable compensation for such attendance or examination by the board of supervisors, upon the written certificate of the court or officer requiring such 552 GOVEENMENT OF COUNTIES. 4290 services, as to the extent and supposed value of the same; provided, that such certificate shall not be conclusive as to the amount of compensatiuu. An Act in relation to coroners in the city and county of Sun Francisco. Approved March 10, 1872; 1H71-2, 403. Official oath and bond. Section 1. Every person elected or apjiointed to the office of coroner, hefore he shall enter upon the duties of such otHce, shall take the constitutiunul oath of office, and give an official bond in the sum of five hundred dolhirs. Coroner's duties. Sec. 2. The duties of coroner shall be, first, to hold inquests upon the bodies of persons slain, or who shall have committed suicide, or been found dead under such circumstances as to lead to a suspicion of crime committed, within the county in which such coroner resides; second, to issue process for the arrest of one charged upon inquest with murder or manslaughttu'; to hold inciuest on the body of every prisoner Avho dies in jail; and it shall be the duty of the jailer, whenever a prisoner dies in his custody, to send for the coroner who has juris- diction, who shall hold inquest ujoon the body of such prisoner. The duties of coroners upon inquests shall not be delegated. Notice of death. Sec. 3. Whenever any coroner shall receive notice that any person has been slain, or has committed suicide, or has died suddenly, or has been found dead under circumstances such as to require an inquisition, it shall be his duty to go to the i^lace where such person shall be, or if the body shall have been inteiTed, shall cause it to be disinterred, and shall forthwith summon not less than nine or more than fifteen jiersons to serve as jurors, to appear before him forthwith at such place as he shall appoint, and make inquisition concerning such death. He shall summon none but persons duly qualified by law to serve as jurors, and no such person shall be exempt except at the discretion of the coroner. No person shall be summoned who is related to the deceased, or to any person who may be suspected or charged with the killiug; nor shall any one be summoned who is known to be prejudiced for or against him, but the jurors who are selected and appear shall not be challenged by any party. [Amendment, ap- proved March 23, 1876; 1875-6, 397; took effect from passage. Forfeiture. Sec. 4. Every person summoned as a juror who shall fail to appear without having a reasonable excuse, shall forfeit a sum not exceeding the sum of two hundred dollars, to be recovered by the coroner, in the name of the people of the state, before any justice of the peace in the proper township, and when col- lected to be paid into the county treasury for t^e use of the county. Swearing jury. Sec. 5. When six or more of the jurors attend they shall be sworn by the coroner and charged by him to inquire hoAV and in what manner and when and where such person came to his death, and who such person was, and into all the circumstances attending such death, and to make a true inquisition accord- ing to the evidence ofi'ered to them or arising from the inspection of the body. Inquest. Sec. 6. There shall be but one inquest upon a body, unless that taken be set aside by the court; and there shall be but one inquest held upon several bodies of persons who were killed by the same cause and who died at the same time. Whenever it shall appear that an error in the identity of the body has been made by the jury, it shall be discretionary with the coroner to call another in- quest upon the body without reference to the court, and a memorandum of the error shall be entered upon the erroneous inquisition. 553 4290 POLITICAL CODE. To view the body. Sec. 7. After the juiy have been sworn and charged by the coroner, they shall go together -n-ith the coroner to view and examine the body of the dec-eased pei-son. They shall not proceed upon the inquest until they have so viewed the body. After the jury have viewed the body they may retire to any conve- nient place to hear the testimony of witnesses and deliberate upon their verdict. For this end the coroner may adjourn the iuquest from time to time, as may be necessary. Isaue suhpania. Sec 8. The coroner may issue subjDoenas for witnesses, returnable forthwith or at such time aud place as he may appoint therein, which may be served by any competent person by reading the same to the witness or informing him or her of the contents thereof, aud such Avitness shall not be entitled to any fee for attendance. Every person served with such subpoena shall be liable to the same penalties for disobedience thereto, and his attendance may be enforced in like manner as in case of subpoenas issued b}' a justice of the peace. Wifnesse.i. Sec 9. The coroner shall summon and examine as witnesses eveiy person who, in his oijiuion or that of the jury, has any knowledge of the facts, and he may summon a surgeon or j^hysician to inspect the body and to give a profes- sional opinion as to the cause of death; and if it shall be necessary, the coroner may cause a post-mortem examination or chemical analysis to be made, and the expense of such examination or analysis shall be a county charge, to be fixed by the board of supervisors. VerdicL Sec 10. "Witnesses produced shall be sworn by the coroner, and the whole of the testimony shall be reduced to writing by the coroner, or under his direction, and signed by the witnesses in the presence of the jury, and each deposition shall liave a jurat attached. The jury, after hearing all the testimony offered before them, shall retire as jurors in other cases and deliberate upon their ver- dict, suffering no one, not even the coroner, to mingle with them in their delib- erations; but they may, as in the case of jurors in the courts of law, take the opinion of the coroner ujjon any question of law that may arise upon the inves- tigation. Dialrici ailorney. Sec 11, The coroner may call uj)on the district attorney to assist him in the examination of witnesses, and the jurors may put any proper question to the witness, but the party susj^ected or charged Avith the crime shall have no right to produce witnesses on the inquest, or to cross-examine those produced on behalf of tlie people by himself or counsel; nor shall it be necessary that he be i)resent during tlie examination. But it shall be the duty of the coroner to examine any witness who he may have reason to believe may know anything concerning the matter pertinent to the inquiry, and to put to any witness any proper and i)ertinent question that such person may desire. Such party suspected or cliarged, liowever, may be attended by counsel on the intjuest to ay legal repre- sentatives of the deceased or the public administrator. Said coroner shall also keejD in his office another book, open to public inspection, in which he shall enter a full description of every article and thing, and all money found with or upon the bodies of deceased persons, or belonging to said deceased persons, that may come into his possession, before he delivers up, or i^ermits the same to go out of his possession; and no money, article, thing, or property of any nature or kind, shall be delivered to any person, until the same shall have been entered in said book as aforesaid, and signed in the presence of said coroner, by the person receiving the same. [Amendment, approved March 30, 1874; 1873-4, 908; took effect from passage. Failure to perform duties. Sec. 22. For a failure on the part of the coroner to perform such duty required by the last section, or any of the duties required by this act, he shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding five thousand dollars, or imprisonment in the county jail not to exceed one year, and shall be liable on his official bond for any and all moneys, chattels, and proj^erty which shall be found on said deceased, and which shall or may come into his possession belonging to said deceased; the same to be recovered in the name of any party who may be entitled to recover the same in any court ha^•ing jurisdiction thereof. Property, how disposed of. Sec. 23. Upon the delivery of money so found to the treasurer, he shall place it to the credit of the county. If other property, and perishable in its nature, he shall within thirty days sell the same at public auction, upon reasonable public notice', and shall in like manner place the proceeds to the credit of the county. Other property shall only be sold upon the order of the county judge. If the said money or property in the treasury be demanded within six years by the legal representatives of the deceased, the treasurer shall, upon legal show- ing, after deducting the fees and expenses of the coroner, and of the county in relation to the matter, pay the balance thereof to such legal representative. Statement of coroner. Sec. 24. Before auditing and allowing the accounts of the coroner, the super- visors of the county shall require a statement from him, in writing, containing an inventory of all money and other valuables found with or \\\io\i all persons upon whom inquests shall have been held, and the manner in which the same has been disposed of, verified by the oath or affirmation of the coroner making the same that such statement is in all respects just and true, and that the money and other articles mentioned therein have been delivered to the treasurer of the county, or to the legal representatives of such person or persons. Coroner to act as sheriff. Sec. 25. The coroner shall i3erform the duties of sheriff in all cases when the sheriff is interested or otherwise incapacitated from serving. Whenever the coroner acts as sheriff he shall possess the poAvers and perform all the duties of the sheriff, and shall be entitled to the same fees as are allowed by law to the sheriff for similar services. Vacancy . Sec. 2G. If the office of coroner be vacant, or he be absent or unable to attend, the duties of his office may be performed by any justice of the peace of the county, with the like authority and subject to the same obligations and penalties as the coroner. 557 4290-4301 POLITICAL CODE. Record of inquests. Sec. 27. The coroner of the city and county of San Francisco, in addition to the duties imposed by this act upon every coroner, shall keep a record of all im|uest.s held by hiiu, \Yith a copy of all testimony and the inquisition of the juries in full; and in case of loss of the on>injd records, the same shall be admissible in evidence with like effect as the oiiginal would have been. DepuUj coroners and messenger. Sec. 28. The coroner of said city and county shall be authorized to appoint two clerks, who shall be sworn to act as first and second deputy coroners in all niattei-8, except those duties on inquests which have been forbidden to be dele- gated by this act. The salary of the clerk sworn to act as first deputy coroner shall not exceed one hundred and fifty dollars per month, and the salary of the clerk sworn to act as second deputy coroner, one hundred and twenty-five dol- lars jier month, which shall be j)aid from the special fee fund of the said city and county. The coroner of said city and county shall be authorized to appoint a messenger, whose duty it shall be to have charge of the dead-wagon, keep in order the morgue, and perform such other duties as are required by the coro- ner or his deputies in connection with the duties of his ofiice. He shall receive a salary not to exceed seventy-five dollars per month, to be paid in like manner as that of the coroner's clerks. [Amendment, approved March 22, 1876; 1875-6, 397 ; took effect from passage. Supervisors to jn'ovide rooms and morgue. Sec 29. The board of supervisors of the city and county of San Francisco are hereby authorized to provide a suitable office and jury room and dead-house or morgue, with the furniture necessaiy^ to enable the coroner to efficiently dis- charge the duties of his office, and to make the necessary appropriation therefor. They are further authorized to audit and pay, for the necessary exj^enses of maintaining the morgue and offices attached, such sum as may be necessary, not to exceed seventy-five dollars per month, to be paid out of the general fund. Salarxj. Sec. 30. The coroner of the city and county of San Francisco shall receive no fees fur any services rendered by him, but he shall in lieu thereof receive a salary of four thousand dollars per annum, payable in like manner as other county officers within said county, to be audited by the auditor and paid out of the same fund jirovided for in the city and county treasury as in the cases of other officers in said city and county. Itej}ealing. Sec. 31. All acts or parts of acts in conflict with the provisions of this act, Ko far as they so far conflict, are hereby repealed. This act shall apply only to the city and county of San Francisco. Sec. 32. This act shall be in force from and after its passage. ARTICLE XI. ASRESfiOnS, TAX COLLECTOUS, school SUPEUINTENDENTS, public ADmNISTRATOnS AND COMMISSIONEU OF HIGHWAYS. 4300. J)iilii'H of assesmr. Sec. 4300. Tlie assessor must perforin such duties as are i^rescribed in Title TX, Part III, «.f this Code. |See ante, 3607.] 4301. I fill u'n of tax collector. Sec. 4301. The tax collector must perform sucli duties as are prescribed in Title IX, Part III, of this Code, [See ante, 3607.] 558 GOVEKNMENT OF COUNTIES. 4302-4329 4302. Duties of school superintendents. Sec. 4302. The school superintendent must perform such duties as are pre- scribed in Title III, Part III, of this Code. [See ante, 1385.] 4303. Duties of public administrator. Sec. 4303. The public administrator must perform such duties as are pre- scribed in Chapter XIII, Title XI, Part III, of the Code of Civil Procedure. [See post, 11,726.] 4304. Duties of commissioner of highwatjs and road overseers. Sec. 4304. The commissioner of liig-hways and road overseers must perform such duties as are prescribed in Title VI, Part III, of this Code. [See ante, 2348.] ARTICLE XII. CONSTABLES, JUSTICES OF THE PEACE AND INFERIOR OFFICERS. 4314. Constables to attend justices' cotirts. Sec. 4314. Constables must attend the courts of justices of the peace within their townships whenever so required, and within their counties execute, serve and return all process and notices directed or delivered to them by a justice of the peace of such county or by any competent authority. 4315. Governed by the laiv prescribing sheriffs' duties. Sec. 4315. All the provisions of Article IV of this chapter, except the fourth and sixth subdivisions of section 417G, apply to constables and govern their powei's, duties and liabilities. 4316. Duties of justices of the peace. Sec. 431G. Justices of the peace must perform such duties as are prescribed in Title XI, Part II, of the Code of Civil Procedure, and such other duties as are prescribed by law. [See post, 10,832.] An Act If'galizing the official acts of constables in this state, i^erformed between the first Mon- day of January and the first Monday of March, 1874. Approved March 27, 1874; 1873-4, 700. Official acts of constables declared valid. Section 1. All official acts performed between the first Monday of January and the first Monday of March, eighteen hundred and seventy-four, by the sev- eral constables in this state who were elected at the general election held in the month of September, eighteen hundred and seventy-three, are hereby declared valid. Sec. 2. This act shall take effect immediately. CHAPTER IV. SALASIES AND FEES OF OFFICE. 4328. Salaries of county judges and district attorneys. Sec. 4328. The salaries of county judges and district attorneys must be paid monthly from the county treasury, on the warrants of the county auditor. Their salaries are fixed in the succeeding sections of this chapter. 4329. Salary of county judges fixed. Sec. 4329. The salaries of county judges are as follows: 1. Of San Francisco, five thousand dollars; 2. Of Sacramejito, three thousand dollars; 3. Of Alameda, twenty-five hundred dollars; 4. Of Nevada and Yulia, twenty-four hundred dollars; 559 4320 POLITICAL CODE. 5. Of Amador, Los Angeles, Napa, Placer, San Joaquin, Santa Clara, So- lano, and Sonoma, two thousand dollars; 6. Of Butte, Colusa, Contra Costa, El Dorado, Marin, Mendocino, Merced, Siskiyou, Stanislaus, Sutter, Tehama, and Yolo, fifteen hundred dollars; 7. Of Calaveras, Fresno, Humboldt, Kern, Mariposa, Monterey, Plumas, San Luis Obispo, Santa Barbara, Santa Cruz, Shasta, Sierra, and Tuolumne, • twelve hundred dollars; 8. Of Alpine, Klamath, Lake, Lassen, San Diego, San Mateo, Trinity, and Tulai-e, one thousand dollars; and 9. Of Del Norte, Inyo, Mono, and San Bernardino, eight hundred dollars. [It will be noticed that above section 4328 provides that the salaries of the couuty judges shall be paid monthly, and section 4329 fixes the salaries at cer- tain sums, without saying " annual" or "per annum." Whatever was meant, the sums so fixed have in some cases been altered by subsequent sjjecial and local laws as follows: In Butte to two thousand dollars per annum, by act of March 27, 1874; 1873-4, 733. In Colusa to twenty-four hundred dollars per annum, by act of March 30, 1874; 1873-4, 873. ,In El Dorado, it seems, to one thousand dollars per annum, by act of March 27, 1872; 1871-2, 592. In Fresno to eighteen hundred dollars j)er annum, by act of March 13, 1874; 1873-4. 349. In Invo to twelve hundred dollars per annum, by act of February 27, 1874; 1873-4, 'l77. In Kern to eighteen hundred dollars per annum, by act of March 13, 1874; 1873-4, 349. In Lake to one thousand dollars per annum, by act of March 31, 1876; 187.5-(;, .599. In Lus Angeles to three thousand dollars per annum, by act of February 2, 1872; 1871-2, G2. In Marin to eighteen hundred dollars per annum, bv act of March 18, 1874; 1873-4, 433. In ^Mariposa to eighteen hundred dollars -pev annum, by act of February 7, 1874; 1873-4, 83. In Merced to sixteen hundred dollars per annum, by act of March 26, 1874; 1873-4, 600. In Modoc the salarv is one thousand dollars per annum, by act of Febiniary 17, 1874; 1873-4, 124. In Napa to eighteen hundred dollars per annum, by act of March 16, 1874; 1873-4, 392. lu San Benito the salarv is twelve hundred dollars per annum, by act of Feb- ruary 12, 1874; 1873-4, 95. In San Bernardino to twelve hundred dollars per annum, b}' act of February 17, 1874; 1873-4, 101. In San Diego to two thousand dollars per annum, bv act of February 17, 1874; 1873-4, 101. In Surj_Luis Obis])o to two thousand dollars per annum, by act of March 26, 1874; l>S(:>-4, 018; changed to eighteen hundred dollars per annum, after 1880 by act f>f March 31, 1870; 1875-6, 008. In San ^Matoo to two thousand dollars per annum, by act of March 18, 1874; 1873-4,479. ^ "^ In Santa Clara to three thousand dollars per annum, by act of March 25, 1874; 1873-4, 010, and by suhseqiient act of February 10, 1876; 1875-6, 35. In Santa Cruz to twelve hundred dollars per annum', by act of March 30, 1876; 1875-0, 570. In Sonoma to three thousand dollars per annum, by act of March 10, 1874; 1873-4,382. ' "^ . ' ' In Stanislaus to fifteen hundred dollars per annum, by act of March 4, 1874; 1873-4,277. ^ ^ 500 GOVERNMENT OF COUNTIES. 4329^330 In Tulare to eighteen bundled dollars per annum, In- act of March 13 1874- 1873-4, 349. In Tuolumne to one thousand dollars per annum, by act of Februaiy 10, 1876; 1875-6, 45. In Ventura the salary is twelve hundred dollars per annum, l)y act of March 26, 1874; 1873-4, G18. In Yolo to eighteen hundred dollars per annum, by act of March 18 1H74- 1873-4, 420.] 4330. Salary of district atforneys fixed. Sec. 4330. The annual salaries of district attorneys are as follows: 1. Of San Francisco, five thousand dollars. 2. Of Sacramento, thirty-six hundred dollars. 3. Of Los Angeles, three thousand dollars. 4. Of San Joaquin, Santa Clara, and Alameda, twenty-five hundred dollars. 5. Of Butte, seventeen hundred dollars. 6. Of Nevada, two thousand dollars; and of Colusa, eighteen hundred dollars. 7. Of Sonoma, eighteen hundred dollars. 8. Of El Dorado, Placer, Amador, Marin, Contra Costa, Tuolumne, Napa, Yolo, Yuba, and Santa Cruz, fifteen hundred dollars. 9. Of Mariposa, Merced, San Mateo, Shasta, Siskiyou, Stanislaus, Tehama, Fresno, Kern, Mendocino, San Luis Obispo, Santa Barbara, Tulare, San Diego, and Plumas, twelve hundred dollars. 10. Of Monterey, Sutter, Tiinity, Sierra, and Calaveras, one thousand dollars. 11. Of Inyo and Lassen, eight hundred dollars. 12. Of Del Norte, Humboldt, Klamath, Lake, and San Bernardino, seven hundred dollars. 13. Of Ali^ine, six hundred dollars. 14. Of Mono, five hundred dollars. [Amendment, approved March 28, 1872; 1871-2, 653; took effect from passage. [The foregoiug amendment constituted section 1 of "An Act in relation to the political code, " approved March 28, 1872; 1871-2, 653. That act contained two additional sections, as follows:] Sec. 2. With relation to the acts passed at the present session of the legisla- ture, section forty -three hundred and thirty of the Political Code must be con- strued as though it had been passed on the last day of the present session. Sec. 3. This act and section forty-three hundred and thirty of the Political Code as herein amended, shall be iniorce and effect from and after the passage of this act. An Act in relation to the office of iliatrict attorney in Santa Crnz county. Approved March 20, 1872; 1871-2, 140. District attorney' s fee in Santa Cruz county. Section 1. In all cases where the district attorney of Santa Cniz county secures a conviction of any person charged with felony or misdemeanor, and cannot obtain the fee allow-ed by law for such conviction from the person con- victed, the said fee shall be a charge against the county, and shall be allowed and paid as other claims and charges against said county. Sec 2. This act shall take effect immediately. An Act to better define the duties and fix the compensation of certain officers of Solano county. Approved March 27, 1872; 1871-2, G24. Sheriff, license collector. Section 1. The sheriff of Solano county shall be ex officio collector of all 36 561 4330 POLITICAL CODE. licenses in said county, and receive therefor the fees now allowed by law, and be allowed as jailer a salary of twelve hundred ($1200) dollars per annum, which shall be paid monthly out of the county treasury of said county. Salaiy of comity cleric. Sec 2. The county clerk of said county shall receive for all services required of him as county clerk and ex officio clerk of the district court, county court, probate court, board of supervisors, and board of equalization, a salary of four thousand dollars per annum, which salary shall be in full for all services re- quired uf him as aforesaid, and it shall be paid monthly out of the county treas- ul•^•. He shall collect and safely keep all fees of whatever kind or nature allowed him by law for sen-ices rendered by him in his several official capacities, and upon the first Monday of each and every month shall pay the same over to the county treasurer of said county, and shall at the same time make out and tile with said treasurer a full and accurate statement, under oath, of all fees, of whatever kind or nature, received in his several official cajDacities for the pre- ceding month. Salary o/diafrict attorney. Sec. 3. The district attorney of said county shall receive a salary of two thou- sand and two hundred dollars j^er annum, which shall be paid monthly out of the treasury of said county. Duty of auditor. Sec. Jr. It shall be the duty of the county auditor of said county, on the first ^londay of each and every month, to draw a warrant upon the county treasurer, in favor of the officers herein named, for the amount of salary due each month under the provisions of this act; and said warrants shall be paid in gold and silver coin on presentation to the county treasurer. Sec 5. This act shall take effect from and after its passage; and all acts and parts uf acts, so far as they conflict with the provisions of this act, are hereby repealed. An Act iu relation to the fees of district attorneys in certain counties. Approved Mirch 30, 1872; 1871-2, 799. Fees of district attorneys in Butte, Inyo, Placer, and Shasta. Seciion 1. In the counties of Butte, Inyo, Placer, and Shasta, the fees allowed to district attorneys for convictions must be taxed as costs against the defend- ants, but if the defendant is unable to pay the same, they are a county charge and must be paid out of the county treasury. Sec, 2. This act shall be iu force from and after its passage. (The salaries of district attorneys in some of the counties, as above fixed, have since been changed by special and local laws as follows: In Amador to twelve hundred and fifty dollars per annum and certain fees, by act of March 20, 187G; 1875-G, 370. In Butte to two thousand dollars per annum and certain fees, by act of March 27, 1874; 1873-4, 733. In Calaveras to one thousand dollars per annum, and payable monthly, and certain fe^-s after March 1, 1 878, l)y act of March 7, 1870; 1875-G, 141. In Cohisa to two thousand rucess on persons charged with criminal offenses; for services and expenses in conveying ci'imiuals to jail; for service of subpoenas issued by district attorneys, and for other services in relation to criminal proceedings for which no specific compensation is prescribed by law; 4. The expenses necessarily incurred in the support of persons charged with or convicted of crimes and committed therefor to the county jail; 5. The sums required by law to be paid to grand jurors and indigent witnesses in criminal cases; (i. The accounts of the coroner of the county for such services as are not ] provided to be paid othen\use; 7. All charges and accounts for services rendered by any justice of the peace for services in the examination of persons charged with crime not otherwise pro- vided for by law; 8. The necessary expenses incurred in the support of county hospitals, and the indigent sick and the otherwise dependent j^oor whose support is chargeable to the county; 9. The contingent expenses necessarily incurred for the use and benefit of the county ; 10. Even' other sum directed by law to be raised for any county purpose under the direction of the board of supervisors, or declared to be a county charge ; 11. The salaiy of the commissioner of highways must be paid at the close of each quarter. 4345. Costs of rrirninal action removed. Sec. 4345. AVhen a criminal action is removed before trial, the costs accruing upon such removal and trial shall be a charge against the county in which the indictment was found. [New section, apqjvoved February 28, 1874; Amendments 1873 -4, 17.5; torj/c iji'crt immediately. 4346. I'rtx-ecdings in collection of such costs. Sec. 4340. The clerk of the county to wliich such action is removed, shall cer- tify the amount of costs allowed and certified by the court to the auditor of his county, and such auditor shall audit the same and draw his warrants therefor ujion the treasuiy of the county from Avhich such action was removed; and such auditor shall fonvard to said treasurer and auditor of the county from which said action was transferred, as aforesaid, a certified copy of the total amount of costs allowed by the court, giving each item as certified to him by the county CC4 GOVERNMENT OF CITIES. 434(;-43o7 clerk and the court, and the auditor receiving such certified copy of said costs allowed, shall enter the same in his books as a charge against the treasury of his county, and the county treasurer of the county from winch such action was removed, must immediately ujion presentation pay said warrant out of the gen- eral fund of said county; or, if at the date of presentation there is not suflicient moneys in the said general fund to pay the same, he must indorse u])on said warrant "Not paid foi* want of funds;" and said warrant must be registered, and shall draw interest at the same rate and be paid in the same manner as though it had been drawn by the auditor of the county where the indictment was found. [New section, cq:)proved February 28, 1874; xhnendmenls 1873-4, 175; took effect immediately. 4347, Provisions of code, to what actions to apply. Sec. 4347. Sections 4845 and 4346 of this code shall apply to all criminal actions which have been or may be removed for trial since the first day of Jan- uary, eighteen hundred and seventy-three, [New section, approved February 2^, 1874; Amendments 181 ^-4t, 175; took effect immediately . TITLE III. f Ijc COouciiimcnt of tfitjt$. Chapter I. Cities as Bodies Corporate 4354 II. Executive Powers 4385 III. Legislative Powers 4403 IV. Judicial Powers 4424 V. Certain Statutes relating to Cities and Towns and existiJig Corporations continued 4442 CHAPTEK I. CITIES AS BODIES COEPORATE. 4364, General powers. Sec. 4354. A city is a body politic and corporate, with the general powers of a corporation, and the powers specified or necessarily implied in this title or in special laws. 4355. Distribution of poivers. Sec. 4355. Every city has legislative, executive, and judicial power. Its legislative powder is vested in a common council; its executive power in a mayor and his subordinate ofiicers; and its judicial power in a police court. 4356. City declared by legislature. Sec. 4356. Every subdivision of a county not exceeding in extent six square . miles, with not less than two thousand inhabitants, with its metes and bounds fixed and defined, and declared by act of the legislature to be a "municipal corporation," is a city with the powers conferred by this title. 4357. Boundaries, how changed. Sec. 4357. The boundary of a city may be changed by an act of tlie legisla- ture, on petition of a majority of the common council, presented in pursuance of a city ordinance, or, as hereinafter provided, by the board of supervisors. [Secs. 4358 to 4365, inclusive,^"' were repealed by act approved Marfli 28, (a) The repealed sections, on account of their length they Bhould present a petition to the board of super- and the fact that thev never went into effect, are visors therefor, etc., etc. They were Riipersedcd, as omitted. They provided that "whenever the resi- above stated, by the operation of the act of febniary 1. dents of a county adjoining the boundary of a city 1^72, which was itself subsequently repealed by act of therein desire to become incorporated therewith," March 23, 187-t; 1873-4, 535. 565 4357-4373 POLITICAL CODE. 1^74; Auieudmeuds 1873-4, 177; took effect immediately. They had, however, been previously superseded by tlie operation of a separate act relating to the same subject-matter, approved February 1, 1872; 1871-2, 50. This last-named act. entitled "An Act to enable the inhabitants of territory adjacent to any city in this state to annex the same thereto," was repealed by act approved March 23, 1874; 1873-4, 535.] 4366. Act to fix time of the first election. Sec 43GG. The act of the legislature declaring a city to be a " municipal cor- pomtion " must fi.x a day for the first election of city o:6fieers, and fix the number of membei-s of the " common council " to be elected for the first year. 4367. First election, ichen and how held. Sec. 4367. Notice of the first election of city officers must be given by the county judge of the county, b}' publishing the same in a newspaper published in tlie city for four weeks successively, designating the officers to be elected, the polling places, and the officers of election. The returns must be made to the county judge, who must count and declare the vote, and issue certificates of election. 4368. ll7io a7'e city electors. Sec. 4308. The qualified electors of the city who have resided within the city limits for thirty days next preceding the election are qualified to vote at all city elections. 4369. Officers. Sec 43G9. The common council must, during the first year, by ordinance, fix the term of office of all elective officers, and the time when they must be elected, and provide for the ai^pointment of other necessary officers, including city clerk, city attorney, and treasurer, and fix their terms and amount of their bonds. [Aineialment, approved March 30, 1874; Amendments 1873-4, 57; took effect July «;, 1874.''' 4370. officers of cities. Sec. 4370. The elective officers of cities are : a mayor, a marshal, a police judge, a.ssessor and collector of taxes, and a common council, consisting of not less than three members. They must be electors of the city, and qualify'by taking the statutory oath of office, and, except the first officers elected, hold office for a term to be fixed by the common council, not exceeding two years. [AmnidmeiU, approved March 30, 1874; Amendments 1873-4, 58; took effect July <;, 1874."" 4371. Direct laxes. Sec 4371. The direct taxes imi:)osed l)y the common council in any one year must not exc6ed two per centum of the valuation of property within the city. 4372. Condemnation of private property for city use. Sec 4372. "Whenever it becomes necessary for the city to take private jiroj)- CHAPTER II. EXECUTIVE POWERS. 4385. Executive officers of a city. Sec. 4385. The executive officers of a city are the mayor, marshal, and such officers for the assessment, collection, auditing, safe keei:)ing, and disl)ursing the revenue and keeping the records and journals of the city, as the common council may j)rovide. 43H6. Powers of mayor. Sec 4386. The mayor has power: 1. To nominate, and with the consent of the common council, to appoint all non-elective officers of the city provided for by the common council, including city attorney, secretary of the council, and city treasurer;* 2. To suspend, and with the consent of the common council, to remove any non-elected officer, stating in the suspension or removal the cause thereof; 3. To cause the ordinances of the city to be executed, and to supervise the discharge of official duty by all subordinate officers; 4. To communicate to the common council, at the beginning of every session, and oftener if deemed necessary, a statement of the afi'airs of the city, \vith such recommendations as he may deem proper; 5. To recommend to the common council such measures connected with the public health, cleanliness, and ornament of the city, and the improvement of the government and finances, as he deems expedient; 6. To approve all ordinances of the common council adopted by it, and in case the same do not meet his apjirobation, to return the same, Avith his objec- tions, within five da^'s after he receives the same. [Amendment, approved March 30, 1874; Amendments 1873-4, 59; too/c effect July 6, 1874."" 4387. Accounts and demands, hmo audited and paid. Sec. 4387. All accounts and demands against said city must be audited by the president of the common council, and no money must be drawn from the city treasury, unless upon the certificate of the president, by order of the council. The certificate must be drawn upon the treasurer of the city, and must s^iecify the fund out of which the same is payable. The treasurer must pay the same out of any money in his hands belonging to such fund. 4388. Mayor, p)resident of the common council. Sec. 4388. The mayor is the president of the common council, must sign the journals thereof, decide by his voice all tie votes, must sign the warrants on the city treasurer, and is the keej^er of the city seal. ia) The original section did not liave the word "col- (h) The originnlBectlon inthe ttret Bubdlvision aftf-r lector." including had the words "asseseor and collector of revenue." 567 4389-4404 POLITICAL CODE. 4389. Duties of cHy mai'shal. Sec. 4389. The city marshal, in addition to the duties prescribed hj the com- mon council, must execute and return all jn-ocess issued by the police judge, or directed to him by any legal authority, and attend upon the police court regu- larly. He may appoint one or more deputies; and must arrest all persons guilty of a breach of the peace or for the violation of any city ordinance, and bring- them before the police judge for trial, and has superintending control over the city police; and, until otherwise provided by ordinance, must perform all duties of collector of city taxes. 4390. Duties of assessor. Si-c. 4390. The assessor, in addition to the duties prescribed by the common council, must make out, within such time as the common council orders, a cor- rect list of all the taxable property within the city limits, with the valuation thereof, which list certified by him must be returned to the common council. The mode of making out the list and of ascertaining the value of property, and of collecting all taxes, is the same us prescribed in this code for assessing and collecting the state tax. 4391. Duties of city attorney. Slc. 4391. The city attorney must attend to all suits, matters, and things in which the city may be legally interested; to give his advice or opinion in writ- ing whenever required by the mayor or common council, and do and perform all such things touching his oflEice as by the common council may be required of him. 4392. Duties of treasurer. Sec 4392. The treasurer must receive all moneys that come to the city either from taxation or otherwise, and pay the same out on the certificate of the presi- dent of the common council, and do and perform all other acts as are prescribed for him by the common council. He must, on the first days of January, April, July, and October of each year, make out and present to the maj'or a full and coniplete statement of the receipts and expenditures of the preceding three months, which statement the mayor must cause to be published. 4393. Duties of clerk. Sec. 4393. The city clerk is clerk of the common council; must keep the journal of their proceedings and all records of the city; he must keep the accounts of the city, and countersign all warrants on the city treasurer; keep a true account thereof and of the financial condition of the city, and do such other things as the common council ma}'- by ordinance provide. CHAPTEK III. LEGISLATIVE POWERS. 4403. Common council. Sec. 4403. The common council consists of not less than three citizens of the city, elected (ine fi-, hikI number of. Si.c. 4404. The counnon council has power* to divide the cit}' into a con- venient number of wards, fix the boundaries thereto, and may change the same from time to time as they see fit, having regard to the number of w'hite male inhabitants, so that eacli ward contains as near as may be the same number of inhabitants. The nuiulter of wards of any city must not exceed the number of couiiciliucn to which tlie city is entitled ; and when a city has been so divided the councilmen must be elected from the several wards respectively, according to the number of inhabitants. 5G8 GOVERN^IENT OF CITIES. 4405-4408 4405. First meeting. Sec. 4405. The members of the common council must assemble Antliiu five days after their election, and choose some suitable person as clerk. In case of the absence of the maj'or they may elect a president pro tempore, who has all the powers and must perform all the duties of the president. They must, by ordinance, fix the times and places of holding their stated meetiugs, and may be convened by the mayor at any time. 4406. Quorum. Sec. 440G. A majority of the members of the common council constitutes a quorum to do business; but a less number may adjourn from day to day, and may compel the attendance of absent members in such manner and under such penalties as the council may by ordinance prescribe. 4407. 3Iay make rules, etc. Sec. 4407. The common council is the judge of the qualification, elections, and returns of their own members and the other ofiicers elected under the pro- visions of this title. They may determine contested elections; they may provide rules for their own proceedings, punish any member or other person for dis- orderly conduct in their presence, and, with the concurrence of two thirds of their number, expel any member, but not a second time for the same cause; they must keep a journal of their proceedings, and at the desire of any member must cause the yeas and nays to be taken and entered on any question; and their proceedings must be public. 4408. Additional powers of common council. Sec. 4408. The common council has power: 1. To create the offices of city clerk, city attorney, assessor, and collector, and such other oflBces as may be necessary, and prescribe their duties and fix their compensation; 2. To establish and fix the salaries of the mayor, police judge, and other city ofiicers, and also fix a tariff of fees for the officers entitled to such, designating the fees allowed for each j^articular item of service, and cause the same to be j)ublished in like manner with the ordinances passed by the common council; 3. To manage the finances and property of the city; 4. To regulate the streets, wharves, piers, and chutes in the city, and the use thereof; 5. To establish or authorize slaughter-houses and markets, and regulate the same; G. To provide for lighting, watering, and cleaning the city, and protecting it against fire; 7. To license and regulate hacks, cabs, carts, omnibuses, railway cars, and all other vehicles, butchers, porters, pawnbrokers, peddlers, showmen, and junk-shop keepers, theatres, and all other places of public amusement; 8. To provide for licensing any or all business not prohibited by law, and fix the amount of license tax for the same; 9. To regulate the keeping and use of animals, and the keeping and use of gunpowder and other dangerous substances; 10. To suppress gaming, gambling-houses and other disorderly houses, nuisances of every description, and all kinds of vice and immorality; 11. To prohibit the burial of the dead within the city, except at such places and in such manner as the common council may determine; 12. To establish and regulate a \)6\\ce department; 13. To establish and regulate a fire department; 14. To impose penalties for the violation of ordinances; but no single penalty 569 4408-4il4 POLITICAL CODE. must exceed a fiue of five liuudi-ed dollars, or iminisonment for ten days, or both. 15. To impose and appropriate fines, penalties, and forfeitures for breaches of ordinance.s; 16. To make by-laws and ordinances not repugnant to the constitution and the laws of the United States or of this state; 17. To require any land or building to be cleansed at the expense of the owner or occupant, and upon his default, may do the -work and assess the expense upon the laud or building; 18. To establish a board of healtli to prevent the introduction and spreading of disease, or to ordain and adopt for the government of the city the " quaran- tine" or "health regulations," j^rovidcd by this code for San Francisco or Sacramento; 19. To levy and collect taxes, to lay out, extend, alter or widen streets and alleys, and make appropriations for any object of city expenditures; 20. To erect and maintain poorhouses and hospitals, and pass such by-laws and ordinances for the regulation of the police as they may deem uecessar}'. All ordinances must be j)ublished in the manner prescribed by the common council. 4409. Street improvements, hoiv made. Sec. 4409. "Whenever the owners of a major part of the property fronting on any street or avenue desire to improve such street b}' paving the same, or con- structing sewers, or otherwise, the mayor and council may make such improve- ment at the exjjense of all the owners of property on the street, which expense must be in proportion to the number of feet owned by each. 4410. To grant authority to gas and loaler companies. Sec 4410. The common council, by ordinance, approved by the maj'or, may grant to any gas or water company the privilege of laying down pipes in the streets and alleys of such city for supplying gas and water for the streets and buildings thereon, for a term not exceeding twenty-five years. 4411. lieservalions by cities. Sec. 4411. In exercising the authority mentioned in j)receding section, the common council must reserve the nght to grant similar privileges to other companies, and require the laying down of the pipes to be under the reason- able direction of the city authorities, and to be so laid as to do no injury to the proper use of the paving, planking, or macadamizing of the streets and alleys, nor to i>rivate property situate thereon. 4412. Contract for gas and ivater. Skc. 4412. The common council may contract with gas and water companies for suj^plying the streets and public buildings with all gas and water necessary for their jtroper use; the rates to be paid therefor must not be fixed for a term exceeding five years, and the city authorities must reserve the right to abrogate such contract whenever gas or water is offered to be supj)lied at two thirds of fiur.li fixed conti'act price. 4413. licstrictions and conditions to be imposed. Sec. 4413. In granting authority to lay down pipes, and in contracting for pas and water, the comnioji council must impose such restrictions and condi- tions, ami provide for kucIi locations and construction of gas and water works and ])ipes as to work the least possible public or private inconvenience, and j)rovide for enforcing such restrictions and conditions. 4414. Ordinance, how vetoed, and how passed over veto. Sec. 4114. Every ordinance passed by the common council must before it 570 GOVERNMENT OF CITIES. 44U-4427 becomes effective be presented to the mayor for bis approbation. If lio approve it, be must sign it; if not, be must return it, with his ol)jections in writing, to the common council, who must cause the same to be entcreil upon its jounuils, and proceed to reconsider the same. If after such consideration two thirds of all the members of the common council elect shall agree to pass the same, it becomes an ordinance. In all such cases the votes must be taken by yeas and nays, and the names of the members voting for and against tbe same must be entered on the journal. If any ordinance is not returned by the mayor within ten days (Sundays excei^ted) after it is j)resented to him, the same becomes effective, as if the mayor had signed it. CHAPTEK IV. JUDICIAL POWERS. 4424. Police judge — Vacancy, how filled. Sec. 4424. The city police judge must be a qualified elector of the city. Any vacancy in the office of police judge must be filled by an appointee of the mayor, made with the advice and consent of the common council. 4425. Police court clerk. Sec. 4425. The police judge may appoint a clerk, with such compensation, by way of salary or fees, as the common council may by ordinance provide. 4426. Criminal jurisdiction. Sec. 4426. The police court has exclusive jurisdiction of the following public offenses committed within the city boundaries. 1. Petit larceny; 2. Assault and battery, not charged to have been committed upon a public officer in the discharge of his official duty, or with intent to kill; 3. Breaches of the peace, riots, affrays, committing willful injury to property, and all misdemeanors punishable by fine not exceeding five hundred dollars or by imprisonment not exceeding six months, or by both such fine and imprisonment; and, 4. Of proceedings respecting vagrants, lewd, or disorderly persons. [Attention maybe called to an amendatory act of Februaiy 13, 1872; 1871-2, 84, as to the jurisdiction of the police court of the city and county of San Francisco, without any expression of opinion as to its effect.] 4427. General and exclusive jurisdiction. Sec. 4427. The police court also has exclusive jurisdiction: 1. Of all proceedings for the violation of any ordinance of the city, both civil and criminal; 2. Of any action for the collection of taxes and assessments leaded for city purposes; or for the erection or improvement of any schoolhouse or iniblic buildings; for the laying out or opening or improving any public street or side- walk, lane, alley, bridge, wharf, pier, or dock; or for tbe purchase of or the improvement of any public grounds; or for any and all public improvements made and ordered by the city within its limits, when the amount of the tax or assessments sought to be collected against the person assessed is less than three hundred dollars; but no lieu upon the property taxed or assessed for the non- payment of the taxes or assessment can be foreclosed in any such action; 3. Of an action for the collection of money due to the city, or from the city to any person, when the amount sought to be collected, exclusive of interest and costs, is less than three hundred dollars; 4. For the breach of any official bond given by any city officer, and for the breach of any contract, and any action for damages in which the city is a party 571 4427-4442 POLITICAL CODE. or is in auj way interested; aud all forfeited recognizances given to or for the benefit or in behalf of the city; and upon all bonds given upon any appeal talien from the judgment of the court in any action above named where the amount claimed, exclusive of costs, is less than three hundred dollars; 5. For the recovery of personal property belonging to the city, when the value of the property (exclusive of the damages for the taking or detention) is less than three hundred dollars; aud 6. Of an action for the collection of any license required by any ordinance of the city. 4428. When justice of the peace to act as police judge. Sec. 4428. In all cases in which the judge is a party, or in which he is inter- ested, or when he is related to either party b}' consanguinity or affinity within the third degree; and in case of his sickness or inability, the police judge may call in a justice of the peace residing in the city to act in his place and stead. 4429. Terms. Sec. 4429. Police courts are always oj)en for the transaction of business, ex- cept on non-judicial days. 4430. Form of proceedings. Sec 4430. Proceedings in the police court in criminal actions for offenses not triable in such courts must be had in conformity with the provisions of Part II, TiUe III, Chapter YII, of the Penal Code. |See post, 13,858.] 4431. Trials in police courts. Sec. 4431. Proceedings in the police courts in criminal actions triable in such courts are regulated in Part II, Title XI, Chapter I, of the Penal Code. [See post, 14,42G.] 4432. Civil practice in police couris. Sec. 4432. Proceedings in the police courts in civil actions are regulated by Part II, Title XII, of the Code of Civil Procedure. [See post, 10,929.] CHAPTER V. CERTAIN STATUTES RELATING TO CITIES AND TOWNS AND EXISTING CORPORA- TIONS, CONTINUED. 4442. Certain statutes continued m force. Sec. 4442. Nothing in this code affects any of the provisions of "An Act to autlioiize and direct the municipal authorities of the several cities and incorpor- ated towns of this state to execute certain trusts in relation to the town lands granted to the incorporated cities and towns in this state by the act of congress entitled an act for the relief of the iidiabitunts of cities and towns upon the public lan-ht hundred and seventy-four, except so much thereof as relates to immi"-ration, and the authority and duties of the commissioner of immigration, and the enforcement of the duties and penalties therein prescribed, which shall take effect immediately after its enactment. 574 EFFECT OF CODES. 44GG-4480 OF THE DEFINITION AND SOURCES OF LAW— EFFECT AND PUBLICATION OF THE CODES, AND THE EXPKESS RE- PEAL OF STATUTES. Title I. Definition and Source of the Law 41GG 11. Effect of the Codes 4478 III. Publication of the Codes, and Statutes continued in Force 4494 IV. Express Repeal of Statutes 4504 TITLE I. Uefitution anh Sources of tijc i'am. 4466. Definition of laiv. Sec. 44G6. Law is a solemn expression of the will of the suj^reme power of the state. 4467. Hoiv expressed. Sec. 4467. The will of the supreme j)ower is expressed: 1. By the constitution; 2. By statutes. 4468. Common law, when rule of decision. Sec. 44G8. The common law of England, so far as it is not repugnant to or inconsistent with the constitution of the United States, or the constitution or laws of this state, is the rule of decision in all the courts of this state. TITLE II, (gUfcct of tIjc (foDcii. 4478. Consfrudion of the codes with relation to the laws passed at the present session. Sec 4478. With relation to the laws passed at the present scs.sion of the leg- islature, the Political Code, Civil Code, Code of Civil Procedure, and Penal Code, must be construed as though each had been passed on the first day of the present session. 4479. Laivs passed at present session prevail. Sec 4479. If the provisions of any law passed at the present session of the legislature contravene or are inconsistent with the provisions of either of the four codes, the provisions of such law must prevail. 4480. Construction of codes with relation to each other. Sec 4480. With relation to each other, the provisions of the four codes must be construed (except as in the next two sections provided) as though nil such codes had been passed at the same moment of time, and were parts of the same statute. 575 4481-4505 POLITICAL CODE. 4481. Conflicts between titles, ivhich to prevail. Sec. 4481. If the provisions of any title conflict with or contravene the pro- visions of another title, the provisions of each title must prevail as to all mat- ters and questions arising out of the subject-matter of such title. 4482. Conflic(. [Secs. 15, 16 and 17'"^ were repealed bv act approved March 30, 1874; Amend- ments 1873-4, 182; took effect July 1, 1874.] 5018. Notice, actual and constructive. Sec. 18. Notice is: 1. Actual — which consists in express information of a fact; or, 2. Constructive — which is imputed by law. 5019. Constructive notice. Sec. 19. Every person who has actual notice of circumstances sufficient to put a prudent man upon inquiry as to a particular fact, has constructive notice of the fact itself in all cases in which, by prosecuting such inquiry, he might have learned such fact. [Amendment, approved March 30, 1874; Amendments 1873-4, 182; took eff'ect July 1, 1874.^'^ 5020. Effect of repeal. Sec. 20. No statute, law, or rule is continued in force because it is consistent with the provisions of this code on the same subject; but in all cases provided for by this code, all statutes, laws, and rules heretofore in force in this state, whether consistent or not with the provisions of this code, unless expressly continued in force by it, are repealed or abrogated. This repeal or abrogation does not revive any former law heretofore repealed, nor does it aflfeet any right ali'eady existing or accrued, or any action or proceeding already taken, except as in this code provided. 5021. This act, how cited. Sec. 21. This act, whenever cited, enumerated, referred to, or amended, may be designated simply as " The Civil Code," adding, when necessary, the num- ber of the section. (a) The original section consisted of twenty-nine subdivisions, and is omit:ed on account of its length. In addition to the terms defined in the amendment, it gave, or attempted to fiive, definitions of -'paper," "land," "compound interest," "year," "a. d.," " Btute," " third persons," " persons of unsound mind," "children," " several," " writ," "prociss," " debtor," "usual," "customary," "usage," "verdict," " value" and " seal." (b) Repealed sections: Sec. l:j. Good faith consists in an honest intention to abstain from taking any unconscientious advantage of another, even through the forms or technicalities of law, together with an absence of all information or belief of facts which would render the transaction un- conscientious. Sec. lij. There are three degrees of care and dili- gence: 1. Slight, which is such as persons of ordinary prudence usually exercise about their own affairs of slight importance; 2. Ordinary, which is such as per- sons of ordiuHry prudence usu:illy exercise about their own affiirsof ordinary importance; i. Great, wliich is such as per.sous of ordinary prudence usually exercise about their own aff-iirs of great importance. Sec. 17. There are three degrees of negligence: 1. Slight, which consi-sts in the want of great care and diligence; 2. Ordinary, which consists in the want of ordinary care and diligence; 3. Gross, which consists in the want of slight care and diligence. (c) Original section: Sec. 19. Every person who has actual notice of cir- cumstances surti ient to put a prudent man upon In- quiry as to a p irticular fact, and who omits to malce such inquiry with reasonable diligence, has construc- tive notice of the fact itself. 579 5025-5034 CH'IL CODE. DIVISION FIRST. Part I. PERSONS 5025 II. PERSONAL RIGHTS 5043 III. PERSONAL RELATIONS 5055 IV. CORPORATIONS 5283 Fi^IlT I. PEKSONS. 5025. Minov!^, xcho are. Sec. 25. Minors are: 1. Males under twenty-one years of age; 2. Eemales under eighteen years of age. 5026. Periods of minorihj, how calculated. Sec. 20). The periods specified in the preceding section must be calculated from the first minute of the day on which persons are born to the same minute of the con-esponding day completing the period of minority. 5027. Adults, u'ho are. Sec 27. All other persons are adults. [Sec. 28'*^ was repealed by act approved March 30, 1874; Amendments 1873-4, 182; took effect July 1, 1874.] 5029. Utiborn child. Sec 29. A child conceived, but not yet born, is to be deemed an existing person, so far as may be necessary for its interests in the event of its subse- quent birth. [Secs. 30 and 31"" were repealed by act approved March 30, 1874; Amend- ments 1873-4, 182; took eflect July 1,"^ 1874.] 5032. Custodij of minors. Sec. 32. The custody of minors and persons of unsound mind is regulated by Part III of this Division. 5033. Elinor, disabilities of. Sec. 33. A minor cannot give a delegation of power, nor, under the age of eighteen, make a contract relating to real property, or any interest therein, or relating to any personal property not in his immediate possession or control. [Amendment, approved March 30, 1874; Amendments 1873-4, 182; took effect July 1, 1874.''' 5034. Minor, rights of. Sec 34. A minor may make any other contract than as above specified, in the same manner as an jidult, subject only to his power of disaffirmance under the provisions of tliis title, and subject to the provisions of the titles on marriage, and on master an 5037. No certain obligations. Sec. 37. A minor cannot disaffirm an obligation, otherwise valid, entered into by him under the express authority or direction of a statute. 5038. Persons without understanding, disabilities and liabilities of. Sec. 38. A person entirely without understanding has no power to make a contract of any kind, but he is liable for the reasonable value of things fur- nished to him necessary for his support or the support of his family. [Aynend- ment, approved March 30, 1874; Amendments 1873-4, 183; took effect July 1, 1874.^^' 5039. Contracts of insane subject to rescission. Sec. 39. A conveyance or other contract of a person of unsound mind, but not entirely without understanding, made before his incapacity has been judi- cially determined, is subject to rescission, as i^rovided in the chapter on rescis- -: r i.1.: j . ^r ^ j^^^t ^^r^^rrmp.d March dO, 1874:; Amendments ISlS-i, § 40. After his incapacity has been judicially determined, a person of unsound mind can make no conveyance or other adjudged. contract, nor delegate any power, or waive any'riaht, until his i , • ■, „ „„ ^r „„ restoration to capacity. But a Certificate from the Medical ' determined, a person of un- Superinteudent or Resident Physician of the Insane Asylum tract, nor delegate anv power, sLwr/"'? ^.T""" ™^y '^^^^ ^f -^ committed, showing'that ^^.^t is judiciallv determined. such person had been discharged therefrom cured and restored *^ ... I, . '. to reason, shall establish the presumption of legal capacity in ' a will, though his restoration such person from the time of such discharge. Fin effect May 29, 1878.] 5041. Minors liable for xorongs, but not uauicjur cJcemjMry damages. Sec 41. A minor, or person of unsound mind, of whatever degree, is civilly liable for a wrong done by him, but is not liable in exemplary damages unless at the time of the act he was capable of kno^Aing that it was wrongful. (a) Original gection: into by him when not under the care of a parent or Sec. 35. lu aU cases other than those specifled by guardian able to provide lorhiui. sections 36 and 37, the contract of a minor may, upon (c) Original section: » „„!„...=*.„ n,.„ restoring the consideration to the party from whom it Sec. 38. A person entirely without understanaing was received, be disaffirmed by the minor hiuiBclf. has no power to contract, except in the case mcu- either before his majority or within a reasonabU- time tioned in section 30, unless expressly authorized by afterward, or, in case of his death within that period, statute. by his heirs or personal representatives. (^0 Original section: u,,* „„» „„«..^i„ lb) Original section- Sec. 39. A person of unsound mind, but not entirely Sec. 36 A minor, or a person of unsound mind of without understanding. ."'">; '""'^^'.^j'^.^^'^";:,?"^ whatever degree, cannot disaffirm a contract, otlicr- «*'»"• '^'"t"^* 1»:'->"\1^''^ '"'^I'.^'-^'^^t,'^:.^'^!^^^^^^ wise valid, to pay the reasonable value of things neccs- determined, subject to rescission, aa provided m the sary for his support, or for that of his family, entered chapter on rescisBiou. 581 5042-5047 CIVIL CODE. 5042. Jlliujfs maij enforce their rights. Sec. 42. A minor may enforce his rights by civil action, or other legal pro- ceedings, in the same manner as a person of full age, except that a guardian must conduct the same. P^RT II. PERSONAL EIGHTS. 5043. General peisonal rights. Sec 43. Besides the personal rights mentioned or recognized in the Political Code, every person has, subject to the qualifications and restrictions provided by law, the right of protection from bodily restraint or harm, from jjersonal insult, from defamation, and from injury to his personal relations. 5044. Defamation, what. Sec. 44. Defamation is effected by: 1. Libel; 2. Slander. 5045. Libel, what. Sec. 45. Libel is a false and unprivileged publication by writing, printing, |)icture, effigy, or other fixed representation to the eye, which exposes any per- son to hatred, contempt, ridicule, or obloquy, or which causes him to be slumned or avoided, or which has a tendency to injure him in his occupation. 5046. Slander, xohat. Sec. 4G. Slander is a false and unprivileged jDublication other than libel, which : 1. Charges an}' person with crime, or with havdng been indicted, convicted, or punished for crime; 2. Imputes in him the present existence of an infectious, contagious, or loath- some disease; 3. Tends directly to injure him in resjoect to his office, profession, trade, or business, either by imputing to him general disqualification in those respects which the office or other occupation j)eculiar]y requires, or by imputing some- thing with reference to his office, profession, trade, or business that has a natural tendency to lessen its profit; 4. Imputes to him impotence or a want of chastity; or, 5. "Wljich, by natural consequence, causes actual damage. 5047. W'ltnl piihlicalions are privileged. Sec. 47. A privileged publication is one made: 1. In the proper discharge of an official duty; 2. In any legislative or judicial proceeding, or in any other official proceed- ing authorized by hiw; 3. In a communication, without malice, to a person interested therein, by one wlio is also interosterl, (^r by one who stands in such a relation to the person interested as to affurd a reasonable ground for supposing the motive for the (oiMjiiunication innocent, or who is requested by tbo person interested to give the information; 582 MARRIAGE. 5047-5050 4. By a fair and true report, without malice, of a judicial, legislative, or other public official proceeding, or of anything said in the course thereof. [Aineridment, approved March 30, 1874; Amendments 1873-4, 184; loo/c e(/'cct July 1, 1874.'^> 5048. Malice not inferred. Sec. 48. In the cases provided for in subdivisions 3 and 4 of the preceding section, malice is not inferred from the communication or publication. 5049. Protection to personal relations. Sec. 49. The rights of personal relation forbid: 1. The abduction of a husband from his wife, or of a parent from his child; 2. The abduction or enticement of a wife from her husband, of a child from a parent or from a guardian entitled to its custody, or of a servant from his master; 3. The seduction of a wife, daughter, orphan sister, or servant; 4. Any injury to a ^ervant which affects his ability to serve his master. 5050. Right to use force. Sec. 50. Any necessary force may be used to protect from wrongful injuiy the person or in'operty of oneself, or of a wife, husband, child, parent, or other relative, or member of one's family, or of a ward, servant, master, or guest, [Aynendmeiit, approved March 30, 1874; Amendments 1873-4, 184; took effect July 1, 1874."'> I>ART III. PEPtSONAL EELATIONS. Title I. Marriage 5055 II. Parent and Child 5193 III. Guardian and Ward 5236 IV. Master and Servant 52G4 TITLE I. Ittarriaoc. Chapter I. The Co>:tract of Marriage 5055 II. Divorce 5082 III. Husband and Wife 515o CHAPTEE I. THE CONTRACT OF MARRIAGE. Abticle I. Validity of Maeriage ^"^^ II. Authentication of Marriage 'j'^''° III. JoDiciAii Determination of Void Maeeiages i>ObO (a) The original section differed in the second and h reasonable ground for Eupposing his nWivc in- third subdivisions, which were as follows: nocent, or who was requested by hini to gi>e tUe In- 2. In testifying as a witness in any proceeding au- formation. , ,. . . .,*,,„ „. ,„i„ .. i„ . t,o»^ thorized by law to a matter pertinent and material, or The fcnirth subdivision had the fjords ,.'n a news- in reply to a question allowed bv the tribunal. paper "between the wonis " report and ^; n'^»7;l 'f ."/.'"; »^".^ interested therein, bv one who was also interested, or one's family or of had the words to the third de- who stood in such a relation to the former as to afford gree." It did not have the word guest. 583 5055-50G2 CFV^IL CODE. AETICLE I. VAX.rDITy OF MARRIAGE. 5055. What constitutes marriage. Sec. 55. Maniage is a personal relation arising- out of a civil contract, to which the consent of parties capable of making it is necessary. Consent alone will not constitute marriage; it must he followed by a solemnization, or by a mutual assumption of marital rights, duties, or obligations. 5056. Mi)Lors capable of contracting marriage. Sec. 5G. Any unmamed male of the age of eighteen years or upwards, and any unmarried female of the age of fifteen years or upwards, and not other- wise disqualified, ai-e capable of consenting to and consummating marriage. 5057. Marriage, hoic manifested and proved. Sec. 57. Consent to and subsequent consummation of marriage may be manifested in any form, and may be jDroved under the same general rules of evidence as facts in other cases. 5058. Marriage, ichen voidable. Sec. 58, If either party to a marriage be incapable from physical causes of enteiing into the marriage state, or if the consent of either be obtained by fraud or force, the mamage is voidable. [Amendment, approved March 30, 1874; Amendments 1873-4, 185; took effect July 1, 1874.^''^ 5059. Incompetency of piarties to. Sec 59. Marriages between parents and children, ancestors and descendants of every degree, and between brothers and sisters of the half as well as the whole blood, and between uncles and nieces or aunts and nephews, are incest- uous, and void from the beginning, whether the relationship is legitimate or illegitimate. 5060. Of wliites and negroes or mulaftoes, void. Sec. go. All marriages of white persons with negroes or mulattoes are illegal and void, 5061. Second marriage, ivhen illegal and void. Sec. 61. A subsequent marriage contracted by any person during the life of a former husband or wife of such person, with any person other than such former husband or wife, is illegal and void from the beginning, unless: 1. The former nian-iage has been annulled or dissolved; 2. Unless such former husband or wife Avas absent, and not known to such person to be living for the space of five successive years immediately preceding such subsequent marriage, or was generally reputed and was believed by such pei-sou to be dead at the time such subsequent marriage was contracted; in either of which cases the subsequent marriage is valid until its nullity is ad- judged by a competent tribunal. [Amendment, approved March 30, 1874; Amend- ments 1873-4, 185; took eff'ect July 1, 1874.^''> 5062. Tieleaae from marriage contract. Sec. (j2. Neither party to a contract to marry is bound by a promise made in ignorance of the other's want of personal chastity, and either is released there- from by unchaste conduct on the part of the other, unless both parties parti- cipate therein, [Amendment, approved March 30, 1874; Amendments 1873-4, 185; took rffect July 1, 1874.*^' (a) OrlKlrial M-rtion; dlvinlon, ■whioh, after the words "preoeflinf; snch Bub- tir.c. :m. If < itlKT pirty to a marrlaKr' 1b Incapable of Bcqiicut iiiiuTiiige," nailB aB follows: " iu wiiich ciise conwiit, for w;iiit of b(4<- or uii-I 5077. To he acknowledged and recorded. Sec. 77. Declarations of marriage must be acknowledged and recorded in like .manner as grants of real property. 5078. Action between the parties to determine validity. Sec. 78. If either party to any marriage denies the same, or refuses to join in a declaration thereof, the other may proceed, by action in the district court, to g 79. Wlu-n unmarried persons, not minors, have been livin- blared. toge her us „mn an.l wife, they may, without a license, be ma." ned by any eh-rpyman. A certificate of such marriage must, by the clcpfryn.an, be made and deHvered to the partieJ^ anri re- corded upon the records of the church of which the cler-^vnian iH a representative. Xo other record need be made, fin effect LEKIAGES. I'-bruary «, 1H78.] ^ ' I iniR arncie, as an entirety, was acuicci lo tne v.iwl Code by act of March 15, 187G; Amendments 1875-G, 09; took efi'ect from passage.] 5080. Judicial declaration of incestuous or void marriage. Sec. 80. Either party to an incestuous or void marriage may proceed by action in thf district court to have the same so declared. [New section, approved Ilarch 15, 1870; Amendments 1875-G, GO; took effect from passage. ♦ h'.^'i "'^i'''"''''''!'',-,'"''.!'''!;''!"' *!"■"" ""l""^''"*''"''-*^® '''' The origiiiKl Bortion did not liavo the wordH Tn,n»?.,HTH''« V r'V; ""''*";' '•;^';'''l'\''^''''• "'"''''''- " htarB to be no Ug«U luipedlmeiit to the marriage." 58G MARRIAGE. 5082-5083 CHAPTER II. DIVORCE. Article I. Nullity 5082 II. Dissolution 5090 III. Causes for Denying Divoece 5111 IV. Gkneeal Pkovlsions Gl'JG ARTICLE I. NULLITY. 5082. Grounds for annulment of marriage. Sec. 82. A marriage may be annulled for any of the following causes, existing at the time of the marriage: 1. That the party in whose behalf it is sought to have the marriage annulled was under the age of legal consent, and such marriage was contracted without the consent of his or her parents or guardian, or person having charge of him or her; unless, after attaining the age of consent, such party for any time freely cohabited with the other as husband or wife ; 2. That the former husband or wife of either party was living, and the mar- riage with such former husband or wife was then in force; 3. That either party was of unsound mind, unless such party, after coming to reason, freely cohabit with the other as husband or wife; 4. That the consent of either party was obtained by fraud, unless such party afterward, with full knowledge of the facts constituting the fraud, freely cohab- ited with the other as husband or wife; 5. That the consent of either party was obtained by force, unless such party afterwards freely cohabited with the other as husband or wife; 6. That either party was, at the time of marriage, physically incapable of entering into the man*ied state, and such incapacity continues, and ai:)pears to be incurable. [Ameyidment, approved March 30, 1874; Amendments 1873-4, 187; took effect July 1, 1874.^''> 5083. Action for nullify, when and by ichom commenced. Sec. 83. An action to obtain a decree of nullity of marriage, for causes men- tioned in the preceding section,- must be commenced within the periods and by the parties as follows: 1. For causes mentioned in subdivision one: by the party to the marriage who was married under the age of legal consent, within four years after arriving at the age of consent; or by a parent, guardian, or other person having charge of such non-aged male or female, at any time before such manied minor has arrived at the age of legal consent: 2. For causes mentioned in subdivision two: by either party during the life of the other, or by such former husband or wife; 3. For causes mentioned in subdivision three: by the party injured, or rela- tive or guardian of the party of unsound mind, at any time before the death of either party; 4. For causes mentioned in subdivision four: by the party injured, within four years after the discovery of the facts constituting the fraud; 5. For causes mentioned in subdivision five: by the injured pariy, within four years after the marriage; (a) The original section differed in the first subdi- age of legal consent: unless, after attaining the age of vision, which was as follows: " 1. That the party seek- consent, such party f..r any tiiue freely cohabited wltU ing to have the marriage annulled was under the the other as husband or wfe. 587 5083-509i Cn^IL CODE. G. For causes mentioned in subdivision six: by the injured party, within four rears after the mamage. [Anifndmi'nt, app'oved 3Iarch 30, 1874; Ainciidmenis 1873-4, 188; took efed July 1, lb74/'' 5084. CliUdrcn of annuUed man-iige. Sec. 84. "Where a marriage is annulled on the ground that a fonner husband or wife was li^•ing, or on the ground of insanity, children begotten before the judgment are legitimate, and succeed to the estate of both parents. 5085. Custody of children. Sec. 85 . The covirt must award the custody of the children of a marriage annulled on the ground of fraud or force to the innocent parent, and may also provide for their education and maintenance out of the property of the guilty party. 5086. £/}'ect of judgment ofmillify. Sec. 8(J. A judgment of nullity of marriage rendered is conclusive only as against the j^arties to the action and those claiming under them. AETICLE II. DISSOLUTION or MABEIAGE. .5090. Marriage, how dissolved. Sec. 90. Man-iage is dissolved only: 1. By the death of one of the parties; or, 2. By the judgment of a court of competent jurisdiction decreeing a divorce of the parties. [Amendment, approved March 30, 1874; Amendments 1873-4, 189; took efed July 1, 1874.^'" 5091. Divorce, effect of judgment. Sec. 91. The effect of a judgment decreeing a divorce, is to restore the parties to the state of unmarried persons. [Amendment, approved March 30, 1874; Amendments 1873-4, 189; took effect July 1, 1874.'"=^ 5092. Grounds of action for divorce. Sec. 92. Divorces may be granted for any of the following causes: 1. Adulteiy; 2. Extreme cruelty; 3. "Willful desertion; 4. "V\"illful neglect; 5. Habitual intemperance; G. Conviction of felony. [Amendment, approved March 30, 1874; Amendments 1873-4, 189; took effect July 1, 1874."'' 5093. Adultery defined. Sec. 93. Adultery is the voluntary sexual intercourse of a married person with a person other tliau the offender's husband or wife. 5094. Krireme cruelty, ivhat. Sec. 94. Extreme cruelty is the infliction of grievous bodily injury or grievous mental HufTering ui)on the other by one party to the marriage. (a) The original bccUod differed In the flrst subdl- (c) Original section: TlBlon whi.h wa« an followK: "1. For cuuHf-B iiic-n- Sfc. Ul. Divorce is a judgment disRolving the mar- tloned In (iub'llvlKl'iii 1: by litlur ii.irty tu the mar- riage and restoring the iiurtjes to the Btatus of uumar- ri«8f. or by a giiHrdiaii or relative, within four years ried perBons. after arriving at tli.- age of cou«eut." (,i) The original section instead of " may " used the (h) Original Ke.tlou: Word "must." Sec. »0. .MarriMgi- luay be dlgHolved: 1. By the death of cither of the jiartii-H; or, 2. By a divorce adjudged by a court of compctcut JurlBdlctiuu. 588 MAKRIAGE, 6095-5104 5095. Desertion, ivhaf. Sec. 95. Willful desertion is the voluntary separation of one of tlio married parties from the other with intent to desert. 5096. Desertion, how manifested. Sec. 96. Persistent refusal to have reasonable matrimonial intercourse as husband and wife, when health or physical condition does not make such refusal reasonably necessary, or the refusal of either party to dwell in the same houso with the other party, when there is no just cause for such refusal, is desertion. 5097. In case of stratagem or fraud, loho comviits desertion. Sec. 97. When one party is induced, by the stratagem or fraud of the other party, to leave the family dwelling-place, or to be absent, and during such absence the offending party departs with intent to desert the other, it is deser- tion by the party committing the stratagem or fraud, and not by the other. 5098. In case of cruelty, loliere one party leaves the other, who commits desertion. Sec. 98. Departure or absence of one party from the family dwelling-place, caused by cruelty or by threats of bodily harm from which danger would be reasonably apprehended from the other, is not desertion by the absent party, but it is desertion by the other party. 5099. Separation by consent not desertion. Sec. 99. Separation by consent, with or without the understanding that one of the parties will apply for a divorce, is not desertion. 5100. Separation, when becomes desertion. Sec. 100. Absence or separation, proper in itself, becomes desertion when- ever the intent to desert is fixed during such absence or sej^aration. [Amend- vient, approved March 30, 1874; Amendments 1873-4, 189; took effect July 1, 1874.*=" 5101. Consent to sepai'ate revocable. Sec. 101. Consent to a separation is a revocable act, and if one of the parties afterwards, in good faith, seeks a reconciliation and restoration, but the other refuses it, such refusal is desertion. 5102. Desertion, how cured. Sec, 102. If one party deserts the other, and before the expiration of the statutory period required to make the desertion a cause of divorce, returns and offers in good faith to fulfill the marriage contract, and solicits condonation, the desertion is cured. If the other party refuse such offer and condonation, the refusal shall be deemed and treated as desertion by such party from the time of refusal. [Amendment,, approved March 30, 1874; Amendments 1873-4, 190; took effect July 1, 1874.^''> 5103. Wife must abide by husband's selection of home, or it is desertion on her part. Sec 103. The husband may choose any reasonable place or mode of living, and if the wife does not conform thereto, it is desertion. 5104. If the place is unfit, and wife refuses to conform, it is desertion by the hus- band. Sec. 104. If the place or mode of living selected by the husband is unreason- able and grossly unfit, and the wife does not conform thereto, it is desertion on the part of the husband from the time her reasonable objections are made known to him. fa) Ori'Tinal section- (&) The original section instead, of •' a cause of di- Lc.Too° The separation and Intent to desert are not voWe ." hud the word« •• ^-"jl'^blT dlemW i^S t^.'ted always coincident. Temporary absence or separation, instead of •• the relusal shall be deemed and treated proper in itself, may be converted into desertion when- as," it had the words • it is. ever the intent to desert is fixed during such absence or separation. 589 5105-5118 CIYIL CODE. 5105. ]ViUftiI neglect, what. Hec. 105. AVillful neglect is the neglect of the husband to provide for his wife the common necessaries of life, he having the ability to do so; or it is the failure to do so by reason of idleness, profligacy, or dissipation. 5106. Habitual intemperance, xohat. Skc. lOG. Habitual intemperance is that degree of intemperance from the nse of intoxicating ariulcs which disqualifies the person a great portion of the time from properly attending to business, or which would reasonably inflict a course of great mental anguish upon an innocent party. 5107. JT'thitual intemperance for one year. ^ bx:c. 107. "Willful desertion, willful neglect, or habitual intemperance must continue for one year before either is a ground for divorce. ARTICLE III. CAUSES FOR DENYING DIVORCE. 5111. Dii-07'ces denied, on slioxoing what. Skc. 111. Divorces must be denied upon showing: 1. Connivance; or, 2. Collusion; or, 3. Condonation; or, 4. Recrimination; or, 5. Limitation and lapse of time. 5112. Connivance, icliat. Sec. 112. Connivance is the corrupt consent of one party to the commission of the acts of the other, constituting the cause of divorce. 5113. Corrupt consent, how manifested. Sec. 113. Corrupt consent is manifested by passive permission, with intent to connive at or actively procure the commission of the acts complained of. 5114. Cnllasion, what. Sec. Hi. Collusion is an agreement betw^een husband and wife that one of them shall commit, or appear to have committed, or to be represented in court as having committed, acts constituting a cause of divorce, for the purpose of enabling the other to obtain a divorce. 5115. Condonation, xchat. Si.c. 115. Condonation is the conditional forgiveness of a matrimonial offense constituting a cause of divorce. 5116. Jif(fnb. Restui-ation of the offending party to all marital rights. 5in. (Jniidonalion imj/lics what. Skc. 117. Condonation implies a condition subsequent; that the forgiving party must be treated with conjugal kindness. 5118. I'jiidi'nce (f condonation. Sic. 118. Where the cause of divorce consists of a course of offensive con- duct, or ari.ses in case of cruelty, from successive acts of ill-treatment which may, aggregately, constitute the offense, cohabitation, or passive endurance, or conjugal kindness, shall not be evidence of condonation of any of the acts con- 590 MAEKIAGE. 5118-5124 stituting- such cause, unless accompanied by an express agreement to condone. [Ainendment, approved March 30, 1874; Amendments 1873-4, 19U; look effect July 1, 1874/^' 5119. Condonation, when can he made. Sec. 119. In cases mentioned in the last section, condonation can bo made only after the cause of divorce has become complete, as to the acts conii)luiiiod of. [Amendment, approved March 30, 1874; Amendments 1873-4, 190; look effect Juhj 1, 1874.^''> 5120. Concealment of facts in certain cases makes condonation void. Sec. 120. A fraudulent concealment by the condonee of facts constituting a different cause of divorce from the one condoned, and existing at the time of condonation, avoids such condonation. 5121. Condonation, hmv revoked. Sec 121. Condonation is revoked and the original cause of divorce revived: 1. When the condonee commits acts constituting a like or other cause of divorce; or, 2. When the condonee is guilty of great conjugal unkindness, not amount- ing to a cause of divorce, but suflficiently habitual and gross to show that the conditions of condonation had not been accepted in good faith, or not fulfilled. 5122. Recrimination, what. Sec. 122. Recrimination is a showing by the defendant of any cause of divorce against the plaintiff, in bar of the plaintiff's cause of divorce. 5123. Condonation as a recriminatory defense. Sec 123. Condonation of a cause of divorce, shown in the answer as a recriminatory defense, is a bar to such defense, unless the condonation be revoked, as provided in section one hundred and twenty-one, or two years have elapsed after the condonation, and before the accruing or completion of the cause of divorce against which the recrimination is shown. [Ainendment, ap- proved March 30, 1874; Amendments 1873-4, 190; took effect July 1, 1874.'"' 5124. Limitation of action for divorce. SeC. 124. A divorce must be denied: 1. When the cause is adultery, and the action is not commenced within two years after the commission of the act of adultery, or after its discovery by the injured party; or, 2. When the cause is conviction of felony, and the action is not commenced before the expiration of two years after a pardon, or the termination of the period of sentence; 3. In all other cases when there is an unreasonable lapse of time before the commencement of the action. [Amendment, approved March 30, 1874; Amend- ments 1873-4, 191; took effect July 1, 1874."^' (n) Original section: tion made without undue influence, bo construed u Sec. Uh. Where the cause of divorce consists of a evidence of condonation, course of oflfensive conduct covering the prescribed (c) Original section; i, « Bt-itiitory period, or arising, in case of cruelty, from Sicc. l'i:i. Condonation of a cause of divorce shown in successive acts of ill treatment which may, aggre- the answer as a recriminatory di-lcnse is a bar '"""J''* gately, constitute the offense, cohabitation, or passive defense when the condonee has fully perti>rmert tne endurance, or conjugal kindness, shall not be evidence marital duties, and is without reproach since tne con- of condonation of any part of the facts or period con- donation, or if three years or more have clapseu after Btituting such cans- s, unless accompanied by an ex- the connation, and before the accruing or compie- press ageement to condone. tion of the cause of divorce against which the recrim- (6) Original section- iuation is shown. i ji . . i Sec. 119. In cases mentioned in the last section, only ( AETICLE IV. GENERAL PROVISIONS. « 5136. Belipf in some cases, lohere reparation denied. Sec 13G. Though judgment of divorce is denied, the court may, in an action for divorce, provide for the maintenance of the wife and her children, or any of them, b}' the husband. 5137. Expense of action. Sec. 137. "While an action for divorce is pending, the court may, in its dis- cretion, require the husband to j^ay as alimony any money necessary to enable the wife to support herself or her children, or to prosecute or defend the action. ? 137. Add, " When the hu.sband willfully deserts the wife lemay.withoutapplyinfr for a.Iivoroe,mHintain in the District .« U • ^ + ourt an aK.on aj:a.n.«t inin for pern.anent support and nnin- '^^^ before Or after judgment, nance of hcrH-lf or of hersHf and children, during the pendency ' " " ' such action the Court may in iis discretion require the hus- iucation of the children of the .„,, , V. w^>.. - ... 5147. Order of court for disposition of jyroperty. Sec. 147. The court, in rendering a decree of divorce, must make such order for the disposition of the community property, and of the homestead, as in this chapter provided, and, whenever necessary for that purpose, may order a parti- tion or sale of the property and a dhision or other disposition of the proceeds. [Amendmeid, approved March 30, 1874; Amendments 1873-4, 192; took effect July!, 1874.^"' 5148. Order subject to revision on appeal. Sec. 148. The disposition of the community property, and of tbe homestead, as above provided, is subject to revision on appeal in all particulars, including those which are stated to be in the discretion of the court. [Amendment, ap- prurrd Mairh 30, 1874; Amendments 1873-4, 192; took effect July 1, 1874."=' CHAPTEE III. HUSBAND AND WIFE. 5155. Mutual obligations of husband and wife. Sec. 155. Husband and wife contract towards each other obligations of mutual respect, fidelity, and support. 5156. Bights of husband, as head of family. Six. 15G. The husband is tbe head of the family. He may choose any reason- able place or mode of living, and the wife must conform thereto. 5157. In other respects their interests separate. Sec. 157. Neither husband nor wife has any interest in the property of the other, but neither can be excluded from the other's dwelling. 5158. Ha.sband and wife may make contracts. Sec 158. Either husband or wife may enter into any engagement or trans- action with the other, or with any other person, respecting property, which either might if unmarried; sul)ject, in transactions betAveen themselves, to the general rules which control the actions of persons occupying confidential rela- tions with each other, as defined by the title on trusts. 5159. Hinvfar may impair their legal obligations. Sec. 159. A husband and wife cannot, by any contract with each other, alter th( ir legal relations, except as to property, and excej^t that they may agree, in writing, to an immediate separation, and may make provision for the snjjport of oithf-r of them and of their children during such separation. \Amendm<7d, approvrd March 30, 1874; Amendinents 1873-4, 193; took effect July 1, 1874.^'^' 51G0. Consideration for agreement of separation . Sec. 100. Tlie nmtual consent of the parties is a sufficient consideration for such an agreement as is mentioned in the last section. 516*1. Miiy he job d tenants, etc. Si;c. KJl. A husband and A\ife may hold property as joint tenants, tenants in • common, or as community jiroperty. (n) Or (.'liuil nr-rtlon: the grouinl nf ndHUcry or pxtremc fruelty. the p(l^^y in ^" II' li, .1.-. ..1 tlic .li:-K"lutii.ii of Uic- niarriBBe fiiult in only entitled to such portion of the comnniuity '■: ■■ !■■ ■ • I... • r:t.l . ..! ,|,itent jurlKilietion, the proixTty as the court granting the decree miiy, in its .■nn.'iiii) iri.^ity iMiihl bi- iqnaly divided be- diKcretion, from the facts of the case, deem just, twi I II 111. I anil h; and the court KrantiiiK the decree (c) Original section: nlu^t iimki- Kuch order for the dlvihlon r,f the com- Sko. U-*. The order for the disposition of the com- I.. unity property, or the hale and efjiial dihtiihutlon of niunity property, under the preceding se( tion. in sub- u.. j.rocetilb thereof, hh the nature of the case may re- ject toVevisicm on appeal in all respect-. Including the I "'re. exeriise of discretion bv the court below. (fe) Oripinnl section: ( ^j 5168. Earnings of wife not liable for debts of husband. Sec. 168. The earnings of the wife are not liable for the debts of the husband, 5169. Earnings of wife, when living separate, 'ieparate p)roperty . Sec. 169. The earnings and accumulations of the wife, and of her minor children living with her or in her custody, while she is living separate from her husband, are the separate property of the wife. 5170. Liability for debts of wife contracted before mai'riage. Sec. 170. The separate property of the husband is not liable for the debts of the wife contracted before the marriage. 5171. Wfe's property not liable for debts of husband, but liable for her own debts. Sec. 171. The separate property of the wife is not liable for the debts of her husband, but is liable for her own debts, contracted before or after marriage. 5172. Power of husband over community jjroperly. Sec. 172. The husband has the management and control of the community in-operty, with the like absolute power of disposition (other than testamentary) as he has of his separate estate. 5173. Courtesy and dower not alloioed. Sec, 173. No estate is allowed the husband as tenant by courte.'^y upon the death of his wife, nor is any estate in dower allotted to the wife upon the death of her husband. (a) The original had the word " primary" instead of (6) Original section: . ^ ,._ " prima facie." Sec. 1(17. A wife cannot make a contract for the pay- ment of money. 595 5174-5193 CIVlh CODE. 5174. Uusbaiid liable for support o/ivife. Sec. 174. If the hu.sbaiul ueglect to make adequate provision for the siipporfc of his wife, except iu the cases mentioned in the next section, any other person may, in good faith, supply her with articles necessary for her support, and recover the reasonable value thereof from the husband. [Amendment, approved .March 30, 1874; Jmendmeuts 1873-4, 193; took efect Juhj 1, 1874.^"' 5175. M'hen not liable. Sec. 175, A husband abandoned by his wife is not liable for her support until she oflers to return, unless she was justified, by his misconduct, in abandoning him; nor is he liable for her support when she is living separate from him, by agi-eement, unless such support is stipulated in the agreement. [Amendment, approved March 30, 1874; Amendments 1873-4, 193; took effect Juhj 1, 1874.*"^ 5176. When wife mu^t support hiif'band. Sec 176. The wife must support her husband, when he has not deserted her, out of her se^iarate property, when he has no separate property, and there is no community i^rojierty, and he is unable, from infirmity, to support himself. \Aine)idnient, approved March 30, 1874; Amendments 1873-4, 194; took effect Juhj 1, 1874.'^' 5177. Bights of husband governed by xoliat. Sec 177. The property rights of husband and wife are governed by this chapter, unless there is a marriage settlement containing stipulations contrjiry thereto. 5178. Marriage settlement co7dracts, how executed. Sec 178. All contracts for marriage settlements must be in writing, and exe- cuted and acknowledged or proved in like manner as a grant of land is required to be executed and acknowledged or proved. 5179. To be acknowledged and recorded. Sec 179. When such contract is acknowledged or proved, it must be recorded in the office of the recorder of every county in which any real estate may be situated which is granted or aifected b}' such contract. 5180. Effect of recording. Sec 180. The recording or non-recording of such contract has a like effect as the recording or non-recording of a grant of real proj)erty. 5181. Minors may make marriage settlements. Sec. 181. A minor capable of contracting marriage may make a valid mamage settlement. TITLE II. JJarcut mh (Tljilti. Chapter I. P.v I'lmir 5193 II. ]jv Adoi'tion 5221 CHAPTER I. CHILDREN BY BIRTH. 5193. Ijpgilimacy (f children born in wedlock. Si;c 193. All cljildren born in wedlock are presumed to be legitimate. (n\ Tho r^{.in«l Bccllon use of parental authority is the subject of juJicial cognizance iu a civil action brought by the chiki, or by its rehitive within the third degree, or by the supervisors of the county where the child resides; and when the abuse is established, the child may be freed from the dominion of the parent, and the duty of support and education enforced. 5204. ]I7je» parental auihorily ceases. Stc. 2U4. The authority of a parent ceases: 1. Tpon the appointment, by a court, of a guardian of the person of a child; 2. Upon the marriage of a child; or, 3. Upon its attaining majority. '' 5205. Bemedij ichen parent dies without providing for svjyport of child. Six. 205. If a parent chargeable with the suj^port of a child dies, leav^ing it chargeable to the county, and leaving an estate sufficient for its support, the supervisors of the county may claim provision for its support from the parent's tstate by civil action, and for this purpose may have the same remedies as any L-reditors against that estate, and against the heirs, devisees, and next of kin of the jtarent. 5206. Eeciprocal duties of parents and children in maintaining each other. Sec 20G. It is the duty of the father, the mother, and the children of any ]ioor person who is unable to maintain himself by work, to maintain such person to the extent of their ability. The i)romise of an adult child to pay for neces- saries previously furnished to such parent is binding. 5207. 117(0! parent is liable for necessaries supplied to child. Skc. 207. If a parent neglects to provide articles necessary for his child who is under his charge, according to his circumstances, a third person may in good faith supply such necessaries, and recover the reasonable value thereof from the parent. 5208. Mlten parent not liable for svpport furnished child. Skc. 208. A parent is not bound to compensate the other j^arent, or a relative, fur the voluntary support of his child, without an agreement for compensation, nor to comi)ensate a stranger for the support of a child who has abandoned the jKircnt without just cause. 5209. Jliisbaiid not hound for support of wife's children by former marriage. Si;f. 2U0. A husband is not bound to maintain his wife's children by a former husband; but if he receives them into his family and supports them, it is pre- sumed that he does so as a parent, and where such is the case, they are not liable to him for their support, nor he to them for their services. 5210. (Joiitpn)mlion and support of adult child. Hec. 210. "Where a child, after attaining majority, continues to serve and to be supported by the parent, neither party is entitled to compensation, in the aljsence of an agreement therefor. 5211. Parent may rrliurpiii^h si-rcices and custody of child. Sj.c. 211. The parent, whether solvent or insolvent, may relinquish to the 'hild the right of controlling him and receiving his earnings. Abandonment \}\ \]\i: parent is i)resuuii)tive evidence of such relinipiishment. 5212. Wftgi-H iff min(n'i(. Skc. 212. The wages of a minor employed in service may be paid to him until tlie parent or guardian entitled thereto gives the employer notice that he claims such wages. \AmeHdmenl, approved March 30, 1874; Amendments 1873-4, 194; t'Mjk i'Jfecl July 1, 1874."^ (a) ThP orlKlnal wictton, in tJn- placf of ■• until," had the words " unleBS, within thirty davri after the com- ■neneeiai-ut of the Bcrvlce." 598 PARENT AND CHILD. 5213-522G 5213. Bight of parent to determine residnice of elidd. Sec. 213. A parent entitled to the custody of a child has a right to change his residence, subject to the jDower of the proper court to restrain a removal which would prejudice the rights or welfare of the child. 5214. Wife in ceriain cases may obtain custody of minor children. Sec. 214. When a husband and wife live in a state of separation, without being divorced, any court of comjoetent jurisdiction, upon a])i)lic-atiun of citlior, if an inhabitant of this state, may inquire into the custody of any unmarried minor child of the marriage, and may award the custody of such child to either, for such time and under such regulations as the case may require. The decis- ion of the court must be guided by the rules prescribed in section 240. 5215. Child legitimized by marriage of pareids. Sec 215. A child born before wedlock becomes legitimate by the subsequent marriage of its parents. [Nero section, approved 3Iarch 30, 1874; Amendments 1873-4, 195; took effect July 1, 1874. CHAPTER II. ADOPTION. 5221. Child may be adopted. Sec 221. Any minor child may be adopted by any adult j^erson, in the cases and subject to the rules prescribed in this chapter. 5222. Who may adopt. Sec. 222. The person adopting a child must be at least ten j-ears older than the person adopted. [Amendment, aprproved 3Iarch 30, 1874; Amendments 1873-4, 195; took effect July 1, 1874. '"> 5223. Consent necessary. Sec 223. A married man, not lawfully separated from his wife, cannot adopt a child without the consent of his wife; nor can a married woman, not thus separated from her husband, without his consent, provided the husband or wife, not consenting, is capable of giving such consent. [Amendment, apjproved March 30, 1874; Amendments 1873-4, 195; took effect July 1, 1874."'> 5224. Consent of child's ptarents. Sec. 224. A legitimate child cannot be adopted without the consent of its parents, if living, nor an illegitimate child without the consent of its mother, if living, except that consent is not necessar}^ from a father or mother dejinved of civil rights, or adjudged guilty of adultery or of cruelty, and for either cause divorced, or adjudged to be a habitual drunkard, or who has been judicially deprived of the custody of the child on account of cruelty or neglect. 5225. Consent of child. Sec 225. The consent of a child, if over the age of twelve years, is necessary to its adoption. 5226. Proceedings on adoption. Sec 226. The person adopting a child, and the child adopted, and the other persons, if within or residents of this state, whose consent is necessaiy, must appear before the county judge of the county where the person adopting resides; and the necessary consent must thereupon be signed and an agreement be exe- cuted by the person adopting, to the effect that the child shall be adopted and (a) Original section: ('') The original eeotion did not have the last rlause Sec. 22-2. The person adopting a child niuKt be at commencing -ftith the word£ "nor can a mamed least fifteen years older than the person adopted, and woman." must have been married, and if a woman, must be a widow, or be lawfully divorced from her husband with- out her fault. 599 5226-5238 CIYIL CODE. treated in all respects as his owu lawful child should be treated. If the per- sons whose consent is necessary are not within or are not residents of this state, then theii- \\'i'itten consent, duly proved or acknowledged according to sections 1182 and 1183 of this code, shall be filed in said county court at the time of the application for adoption. \ Amendment, approved February 9, 1876; Amendments 1875-6, 69; took effect im mediately.'-'''' 5227. Judge's order. Sec. 227. The judge must examine all persons appearing before him pursuant to the last section, each sej^arately, and if satisfied that the interests of the child will be promoted by the adoption, he must make an order declaring that the child shall thenceforth be regarded and treated in all respects as the child of the person adopting. 5228. Effect of adoption — Rights and duties. Sec. 228. A child, when adopted, may take the family name of the person adopting. After adoption, the two shall sustain towards each other the legal relation of parent and child, and have all the rights and be subject to all the duties of that relation. [Amendment, approved March 30, 1874; Amendments 1873-4, 195; took eff'ect July 1, 1874.'"^ 5229. Eff'ect on former relations of child. Sec 229. The parents of an adopted child are, from the time of the adoption, relieved of all parental duties towards, and all responsibility for, the child so adopted, and have no right over it. 5230. Adoption of illegitimate child. Sec. 230. The father of an illegitimate child, by publicly acknowledging it as his own, receiving it as such, with the consent of his wife, if he is married, into his family, and otherwise treating it as if it were a legitimate child, thereby adopts it as such; and such child is thereupon deemed for all purposes legiti- mate from the time of its birth. The foregoing provisions of this chapter do not appl}- to such an adoption. TITLE III. 5236. Guardian, what. Sec. 236. A guardian is a person appointed to take care of the person or property of another. 5237. Ward, what. Si;c. 2ii7. The j)erson over whom or over whose property a guardian is appointed, is called his ward. 5238. Kinds (f guardians. Sec. 238. Guardians are either: 1. General; or, 2. Sj.ecial. (/I) OrijflnnlfWfrtlon: tlie cIiiM Khnllbf) n(lf)ptfd, nnd treated in all respects Hkc. •j'iO. Tin- pfiDioii HdoptliiK a "hllil, anii be higned, and an agreement person adopting, and the two thenceforth." be executed by the l>erHuu aUox>tiug, to the elTect that GUO GUAEDIAN AND WARD. 5239-524G 5239. General guardian, what. Sec. 239. A general guardian is a guardian of the person or of all tlie prop- erty of tlie ward within this state, or of both. 5240. Special guardian, ivhat. Sec, 240. Every other is a special guardian. 5241. Appointment of guardian by will or by deed. Sec. 241. A guardian of the person or estate, or of both, of a child born, or likely to be born, may be appointed by will or by deed, to take eli'ect upon the death of the jiarent appointing: 1. If the child be legitimate, by the father, with the written cousent of the mother; or by either parent, if the other be dead or incapable of consent; 2, If the child be illegitimate, by the mother. [Ammdmenf, approved March 30, 1874; Amendments 1873-4, 195; took effect July 1, 1874.^"' b^A'2.. No person guardian of estate ivithout ap>pointment. Sec 242. No person, whether a parent or otherwise, has any power as guardian of property, except by appointment as hereinafter provided. 5243. Appointment by court. Sec. 243. A guardian of the person or property, or both, of a person residing in this state, who is a minor, or of unsound mind, may be appointed in all cases, other than those named in section two hundred and forty-one, by the probate court, as provided in the Code of Civil Procedure. [Amendment, approved March 30, 1874; Amendments 1873-4, 196; took effect July 1, 1874.^''' 5244. Same. Sec 244. A guardian of the property within this state of a person not resid- ing therein, who is a minor, or of unsound mind, may be appointed by the probate court, 5245. Jurisdiction. Sec 245. In all cases the court making the appointment of a guardian has exclusive jurisdiction to control him. 5246. Rules for aioarding custody of minor. Sec 246. In awarding the custody of a minor, or in appointing a general guardian, the court or officer is to be guided by the following considerations: 1. By what appears to be for the best interest of the child in respect t© its temporal and its mental and moral welfare; and if the child be of a sufficient age to form an intelligent preference, the court may consider that preference in determining the question. 2. As' between parents adversely claiming the custody or guardianship, neither parent is entitled to it as of right; but, other things being equal, if the child be of tender years, it should be given to the mother; if it be of an age to require education and preparation for labor and business, then to the father. 3. Of two persons equally entitled to the custody in other respects, preference is to be given as follows: 1. To a parent; 2. To one who was indicated by the wishes of a deceased parent; 3. To one who already stands in the position of a trustee of a fund to be applied to the child's support; 4. To a relative. [Amendment, approved March 30, 1874; Amendments 18 r 3-4, 196; took effect July 1, 1874.<'=' (a) The original section did not have the words " or M)J^J^^T^\ T^.^^^ '^tJ:^^^ "S?The"oSn:; section did not have the words ... "instead of-.-:." and in addition had '• 5 Tooneo, " other th,m those named in section two hundred and good moral character, forty-one." 601 5247-5255 CIYIL CODE. 5247. Foicers of guardian aiipointed by court. Sec. 247. A guardiau aiDpointed by a court bus power over the person and projierty of tlie ward, unless otherwise ordered. 5248. Duties of guardian of the person. Sec. 248. A guardian of the person is charged with the custody of the ward, and must look to his sui)poi t, health, and education. He may fix the residence of the ward at auy place within the state, Lut not elsewhere, without permission of the coiut. 5249. Duties of guardian of estate. Sec. 249. A guardian of the property must keep safely the property of his wai'd. He must not peiTait any unnecessary waste or destruction of the real property, nor make any sale of such propert}' without the order of the probate court, but must, so far as it is in the power, maintain the same, with its build- ings and apimrtenances, out of the income or other proj^ert}' of the estate, and deliver it to the ward, at the close of his guardianship, in as good condition as he received it. [Amendment, approved March 30, 1874; Amendments 1873-4, 197; took effect Juhj 1, 1874.<''> 5250. Relation confidential. Sec. 250. The relation of guardian and ward is confidential, and is subject to the i^rovisions of the title on trust. 5251. Guardian under direction of court. Sec 251. In the management and disposition of the person or j^ropert}^ com- mitted to him, a guardian may be regulated and controlled by the court. 5252. Death of a joint guardian. Sec 252. On the death of one of two or more joint guardians, the power continues to the survivor until a further ajDjDointment is made by the court. 5253. liemoval of guardian. Sec 253. A guardian may be removed by the probate court for any of the following causes: 1. For abuse of his trust; 2. For continued failure to perform its duties; 3. For incapacity to perfoiin its duties; 4. For gross immorality; 5. For having an interest adverse to the faithful performance of Ids duties; 6. For removal from the state; 7. In the case of a guardian of the property, for insolvency; or, 8. When it is no longer jjroper that the ward should be under guardianship. 5254. Guardian appointed by parent, Juno superseded. Sec 254. The power of a guardian appointed by a parent is superseded: 1. By his removal, as provided by section 253; 2. By the solemnized marriage of the ward; or, 3. By the ward's attaining majority. 5255. Guardian appointed by court, how suspended. Sec 255. The j)ower of a guardian appointed by a court is suspended only: 1. By order of tlie court; or, 2. If tlie api)ointiiient was made solely because of the ward's minority, by his attaining majority; or, (a) Orl«ina) wctloii: nanct*, out of the moneys of the oetate, and delivertho bEC. J4U. A Kuardinn of th<- i.r..r"rty luwt kfcpKafely Baiiie to the ward, at the close of his KUiirdiaDsliii). iu the property of IiIh ward. He inuht not t-uflVr iiiiy sale, as Kood condition as he received them, inevitable de- w«>it»-, or d<-Btnipurte- G02 MASTEE AND SERVANT. 5255-52C6 3. The guardiansliip over the person of the ward, by tlie niarria^^'c of the ward. [Amendment, approved March 30, 1874; Amendments 1873-4, 197; tuuk effect July 1, 1874. '""> 5256. IMease by ward. Sec. 25G. After a ward has come to his majority, he may settle accounts with his guardian, and give him a release, which is valid if obtained fairly and with- out undue influence. 5257. Guardian's discharge. Sec. 257. A guardian ajipointed by a court is not entitled to his discharge until one year after the ward's majority. 5258. Insane persons. . Sec. 258. A person of unsound mind may be placed in an asylum for such persons, ujjon the order of the county judge of the county in which he resides, as follows: 1. The judge must be satisfied, by the oath of two reputable physicians, that such person is of unsound mind, and unfit to be at large; 2. Before granting the order the judge must examine the person himself, or if that is impracticable, cause him to be examined by an impartial person; 3. After the order is granted, the person alleged to be of unsound mind, his or her husband or wife, or relative to the third degree, may demand an investi- gation before a jury, which must be conducted in all respects as under an inqui- sition of lunacy. TITLE IV. master anh Scruant. 5264. 3Iinors may ap2:>rentice themselves. Sec. 264. Every minor, with the consent of the persons or officers herein- after mentioned, may, of his own free will, bind himself, in writing, to serve as clerk, ajDprentice, or servant, in any profession, trade, or employment, during- his minority; and such binding shall be as valid and effectual as if such minor was of full age at the time of making the engagement. 5265. Consent of p)arents, etc., requidte. Sec. 265. Such consent shall be given: 1. By the father of the minor. If he be dead, or be not of legal capacity to give his consent, or if he shall have abandoned or neglected to provide for his family, and such fact be certified by a justice of the peace of the township or county, or sworn to by a credible witness, and such certificate or affidavit bo indorsed on the indenture, then: 2. By the mother. If the mother be dead, or be not of legal capacity to give such consent or refusal, then: 3. By the guardian of such infant. If such infant have no parent living, or none in a legal capacity to give consent, and there be no guardian, then: 4. By the supervisors of the county, or any two justices of the peace, or the judge of the probate court of the county; 5. If such minor be an orphan, under the care and control of any orphan asylum in this state, then by the board of managers thereof. 5266. Written consent. Sec 266. Such consent shall be signified in writing by the person entitled to give the same, by certificate at the end of, or indorsed upon the indentures. (a) The original section, instead of " suspended." had the word " superseded." It did not have the third sub- division. 603 5267-5276 CH^IL CODE. 5267. Executors may bind. Sec. 2G7. The executors of any last will of a parent, who shall be directed in such will to bring up bis or her child to some trade or calling, may bind such child to ser^-ice as a clerk, or apj)rentice, in like manner as the father might have done if living. If there is a surviving mother, her consent also is neces- sary. 5268. Sicperinsors may bind out. Slc. 2G8. The supen-isors of the county may bind out minors who are or shall become chargeable to such county, to be clerks, apprentices, or servants, -which binding shall be as effectual as if such minors had bound themselves with the consent of their father, 5269. Toxon officers. Sec 269. In eveiy town or city the presiding officer of the first council or legislative board thereof, if there be more than one, or any public officer or officers apiDointed to provide for the poor, may in like manner bind out any child who, or whose parents are, chargeable to any such town or cit}'. 5270. Age of apprentice to be inserted in indentures. Sec 270. The age of every infant so bound shall be inserted in the inden- tures, and shall be taken to be the true age; and whenever public officers are authorized to execute any indentures, or their consent is required to the validity of the sajue, it shall be their duty to inform themselves fully of the infant's age. 5271. Indentures, conditions in. Sec. 271. Ever}' sum of money paid or agreed for, with or in relation to the binding out of any clerk, ajoprentice, or servant, shall be inserted in the inden- tures. 5272. Same. Sec 272. The indenture shall also contain an agreement, on the j)art of the person to whom such child shall be bound, that he will cause such child to be insti'ucted to read and write, and to be taught the general rules of arithmetic, or, in lieu thereof, that he will send such child to school three months of each year of the period of indenture. 5273. Deposit of indentures. Sec 273. The counterjoart of any indenture executed by any county, or citj^ or town officers, must be by them deposited in the office of the clerk of the count}' court. 5274. Alien minors. Si.o. 274. Any minor, capable of becoming a citizen of this state, coming from any other country, state, or territory, may bind himself to service until his majority, or for any shorter term. Such contract, if made for the purpose of raising money to pay his passage, or for the jDayment of such passage, may be for the term of one year, although such tenn may extend beyond the time when such person will be of full age, but it shall in no case be for a longer term. 5275. Contract under preceding section to be acknowledged. Sfx;. 27.5. No contract made under the preceding section shall bind the ser- vant, unless duly acknowledged l)y the minor, before some imblic magistrate or other officer authorized to administer oaths, nor unless a certificate, showing that tlic same was made freely, on private examination, be indorsed upon the contract. 5276. Causes for annulliiig indentures. Sec. 276. Such indentures of apprenticeship may be annulled for: 6U4 MASTER AND SERVANT. 627G 1. Fraud in the contract of inJeuture; 2. When such contract is not made or executed in accordance "witli the pro- visions of this title; 3. For willful non-fulfillment, by such master, of the provisions of such indenture; 4. Cruelty or maltreatment of such apprentice by the master. In such case, the apprentice may recover for his services. An Act relative to apprentices and masters. Approved April 3, 1870; 1875-6, 842. 3Iinors may be apprenticed. Section 1. All minors, at the age of fourteen years, may be bound by cove- nant or indenture, in conformity with the stipulations herein specified, to any mechanical trade or aii, or the occupation of farming, as apprentices; males to the age of twenty-one years, and females to the age of eighteen. By vjhom. Sec. 2. Minors, at or above the age of fourteen years, may be bound by the father, or, in case of his death, incomjietency, or where he shall have willfully abandoned his family for one year without making suitable provision for their support, or has become an habitual drunkard, vagi-ant, etc., then by their mother, or by their legal guardian; and if illegitimate, they may be bound by their mother; and if they have no parent competent to act, and no guardian, they may bind themselves, with the apj)robation of the county court of the county where they reside; but the power of a mother to bind her children, whether legitimate or illegitimate, shall cease upon her subsequent marriage, and shall not be exercised by herself or her husband, at any time during her marriage, without the approval of the county court of the county wherein she or he resides. Comment of minor necessary. Sec. 3. In all cases the consent of the minor, personally, is required as a party to the covenant, and should be so expressed in the indenture, and testified by his or her signing the same. Indentures. Sec. 4. Indentures shal.1 be signed, sealed, and delivered in duphcate copies, in the presence of all the parties concerned; and when made with the appro- bation of the county court, or the judge thereof in vacation, such approbation shall be certified in writing, indorsed upon each copy of the indenture. One copy of the indenture shall be kept for the use of the minor by his parent or guardian (when executed by them respectively); but when made with the ap- probation of the county court, it shall be deposited in the safe-keeping of the clerk of said court, for the use of the minor. The other copy shall l)e held by the master, and delivered up by him to the apprentice at the expiration of his term of service. Same. Sec 5. No indenture of apprentice, made in pursuance of this act, shallbind the minor after the death of his master, but the apprenticeship shall be thence- forth discharged, and the minor may be bound out anew. Same. Sec. 6. Facts of incapacity, desertion, drunkenness, vagrancy, etc., shall be decided in the county court by a jury before the indenture shall take effect, and an indorsement on the indenture, under seal of the court, that the charge or charges are proved, shall be sufficient evidence of the mother's power to give such consent; but if the jury do not find the charge or charges to be true, the 605 5276 CIVIL CODE. person at whose instance such proceedings may have been had shall pay all costs atteudiug the same. Executor may bind. Sec. 7. Tlie executor, who by the will of a father is directed to bring up his chikl to a trade or calHng, shall have power to bind such by indenture in like manner as the father, if living, might have done. County court may hind. Sec. 8. When any minor who is poor, homeless, chargeable to the county, or an outcast, has no visible means of obtaining an honest liveliliood, it shall be lawful for the county court to bind such apprentice until, if a male, he arrives at the age of twenty-one; and if a female, to the age of eighteen. Obligations of masters. Sec 9. It shall be unlawful for any master to remove an apprentice out of this state; and in all indentures by the county court for binding out any orphan or homeless minor as an apprentice, there shall be inserted, among other cove- nants, a clause to the following effect: That the master to whom such minor shall be bound, shall cause the same to be taught to read and write, and the ground rules of arithmetic, the compound rules, and the ratio and proportion, and shall give him requisite instruction in the different branches of his trade or calling; and at the expiration of his term of service shall give him two full new suits of clothes, and the sum of fift}' dollars, gold; and if a female, she shall receive two fine new suits of clothes, and the sum of fifty dollars, gold; the two new suits, in either case, to be worth at least sixty dollars, gold. Money cot isidei'at ions and clothes the property of apprentice. Sec. 10. All considerations of money or clothes paid or allowed by the master, in conformity with the foregoing section, are the sole property of the apprentice, and to whom the master is accountable for the same, and he shall pay or donate into the hand of the apprentice alone. Treatment of apprentices. Sec. 11. Parents and guardians and the couuty court shall, from time to time, inquire into the treatment of the children bound by them, respectively, or with their approbation; and the judges of the county court shall be respon- sible for the charge of indentured ai^preutices bound by the approbation of their predecessors in office, and defend them from all cruelty, neglect, breach of contract, or misconduct on the part of their masters. Aye to he stated. Sec 12. The age of everj' apprentice shall be inserted in the indenture; and all indentures entered into otherwise than as is herein provided, shall be, as to all ajiprentices under age, utterly void. County court to hear complaints. Sec 1*5. The county court shall hear the complaints of apprentices who reside •witliin the county, against their masters, alleging undeserved or immoderate correction, insuflicient allowance of food, raiment, or lodging, want of instruc- tion in the different branches of their trade or calling, or that they are in danger of being removed out of the state, or any violation of the indenture of appren- ticeship; and tlie court may hear and determine sii^h cases, and make such order therein as will relieve the party injured in future. Court may discharge apprentice. Sec 14. The county court shall have power, where circumstances require it, to discliurge an apprentice from his apprenticeship, and in case any money or other thing has been paid, or contracted to be paid by either party, in relation to such apprenticcf^hii), the court shall make such order concerning the same as GOO MASTER AND SERVANT. 5270 shall seem just and reasonable. If the apprentice so cUsehrtrf^ed shall have been originally bound by the county court, it shall be the duty of tlie co\irt, if found necessary, again to bind such apprentice, if under age. Liability of master. Sec. 15. Every master shall be liable to an action on the indenture for the breach of any covenant on his part therein contained; and all damages recov- ered in such action, after deducting the necessary charges in prosecuting the same, shall be the property of the minor, and shall be applied and appropri- ated to his use by the person who shall recover the same, and shall be paid to the minor, if a male, at the age of twenty-one years, and if a female, at the age of eighteen years. If such action is not brought during the minority of such ap- prentice, it may be commenced in his own name at any time within six months after coming of age, but not later than two years. Action against apprentice for neglect, misdemeanor, etc. Sec. 16. An apprentice Avho shall be guilty of any gross misbehavior, or re- fusal to do his duty, or willful neglect thereof, shall render hiniself liable to the complaint of the master in the county court of the county wherein he re- sides, which complaint shall set forth the circumstances of the case; and to said complaint shall be attached a citation, signed b}' the clerk in said court, requir- ing the apprentice and all persons who have covenanted in his behalf, to appear and answer to such complaint, which complaint and citation shall be served on them in the usual manner of serving civil process. Court may dissolve apprenticeship. Sec. 17. The court shall proceed to hear and determine the cause, and after a full hearing of the parties, or if the adverse party shall neglect to appear after due notice, the coui-t may render judgment or decree that the master be discharged from the contract of apprenticeship, and for the costs of. suit; srvch costs to be recovered of the parent or guardian of the minor, if there be any who signed the indenture, and execution therefor issued accordingly; and if there be no parent or guardian liable for such costs, execution may be issued therefor against the minor, or the amount thereof may be recovered in an action against him after he shall arrive at full age. Liability of parties to indenture. Sec. 18. The parties to an indenture shall also be liable to the master in an action on the indenture, for the breach of any covenant on their part therein contained, committed before the master was so discharged from such indenture. Misdemeanor. Sec. 19. It shall be unlawful for any person to entice, counsel, or persuade to run away any apprentice, or employ, harbor, or conceal such, knowing said apprentice to be a runaway; and the parties so offending shall be guilty of a misdemeanor, and be subject to fine of not less than fifty and not mure than one hundred dollars, to be recovered by the master in any court having juris- diction thereof. Wlten master removes from this state. Sec 20. Whenever any master of an apprentice shall wish to remove out of this state, or to quit his trade or business, he shall appear with his apju-entiee before the county court of the proper county, and if the court be satisfied that the master has done justice to the said apprentice, for the time he has had charge of the same, such court shall have power to discharge such apprentice from the service of such master, and again bind him, if necessary, to some other jDerson. Sec 21. All acts and parts of acts in conflict with the provisions of this act are "hereby repealed. Sec 22. This act shall take effect and be in force from and after its passage. 607 0283-52S4 CH'IL CODE. F^HT IV. COEPOEATIONS. Title I. General Provisions Applicable to all Corporations... 5283 II. Insurance Corporations 5414 III. Eailroad Corporations 5454 IV. Street Railroad Corporations 5497 V. Wagon Eoad Corporations 5512 VI. Bridge, Ferry, Wharf, Chute, and Pier Corporations 5528 VII. Telegraph Corporations 5536 \ill. Water and Canal Corporations 5548 IX. Homestead Corporations 5557 X. Sayings and Loan Corporations 5571 XI. Mining Corporations 5584 XII. Eeligious, Social and Benevolent Corporations 5593 XIII. Cemetery Corporations 5608 XIV. Agricultural Fair Corporations 5620 XV. Gas Corporations 5628 XVI. Land and Building Corporations 5639 TITLE I. (Ccncral ProubioHO opijlicable to all (Torpomtion^. Chapter I. Formation of CoKPOR.vnoxs 5283 II. CoRPOR.\TE Stock 5322 III. Corporate Powers 5354 IV. Extension and Dissolution of Corporations 5399 CHAPTEE L formation of corporations. AnncLK I. CoRpoKATioNS Definkd and how Oeoanized 5283 II. ]iY-LAWS, DiKKCTOJiS, ElKCTIONS, AND MEETINGS 5301 ARTICLE I. corporations defined and how organized. 5283. (^'orporalion drfmed. Sec. 2H:}. A corporation is a creahire of the law, having certain powers and duties of a natural person. Being created by the law, it may continue for any length of time which the law prescribes. 5284. Cor] /oral ions, j/nJilic and private distinguished. Sec. 284. Corporations are either public or private. Public corporations are formed or oi'ganized for the government of a portion of the state; all other cor- jjorations are private. \ Amendment, approved 3Iarch 30, 1874; Amendments 1873-4, 197; took ej/l'cl July 1, 1874.^"' (a) The original spctlon, InFtoad of " b11 olhor cor- tions arc formed for the purpose of religion, benevo- poratlone are private," bad the wordb " jirl vute corpora- leuce, education, art, literature or profit," G08 CORPORATIONS— GENERAL PROVISIONS. 5285-52S8 5285. Private corporation!^, hoio formed. Sec. 285. Private corporations may be formed by the vohuitary association of any five or more persons, in the manner prescribed in this article. A major- ity of such persons must be residents of this state. [Amendment, approved March 30, 1874; Amendments 1873-4, 197; took ejj'ccl July 1, 1874."" 5286. Corporations may be formed for any lanful purpose. Sec. 286. Private corj)orations may be formed for any purpose for uhidi in- dividuals may lawfully associate themselves. [Amendment, approred Marvh 30, 1874; Amendments 1873-4, 198; took ej/'ect July 1, 1874.'''> 5287. Continuance of existence un der j^rovisions of code. Sec. 287. Any corporation existing on the first day of Januaiy, one thousand eight hundred and seventy-three, formed under the laws of this state, and still existing, which has not already elected to continue its existence, under the j^ro- visions of this code applicable thereto, may, at any time hereafter, make such election by the unanimous vote of all of its directors, or such election may be made at any annual meeting of the stockholders or members, or at any meeting called by the directors expressly for considering the subject, if voted by stock- holders representing a majority of the capital stock, or by a majority of the members, or may be made by the directors upon the written consent of that number of such stockholders or members. A certificate of the action of the directors, signed by them and their secretary, when the election is made by their unanimous vote, or ujion the written consent of the stockholders or mem- bers, or a certificate of the proceedings of the meeting of the stockholders or members, when such election is made at any such meeting, signed by the chair- man and secretary of the meeting, and a majority of the directors, must be filed in the office of the clerk of the county where the original articles of corpora- tion are filed, and a certified copy thereof must be filed in the office of the sec- retary of state; and thereafter the corj)oration shall continue its existence under the provisions of this code which are ai^plicable thereto, and shall possess all the rights and powders, and be subject to all 1;he obligations, restrictions, and limitations prescribed thereby. {Amendment, approved March 30, 1874; Amend- ments 1873-4, 198; took effect July 1, 1874.<'=' 5288. Existing corpoi^alions not affected. Sec. 288. No corporation formed or existing before twelve o'clock, noon, of the day upon which this code takes effect, is affected by the provisions of Part IV of Division First of this code, unless svich corporation elects to continue its existence under it as provided in section 287; but the laws under which such corporations were formed and exist are applicable to all such corj^orations, and are repealed, subject to the provisions of this section. {a) The original section after " five or more persons " paper for two weeks, or a weekly newspaper for four had the wordB " for the purposes and." It had an addi- weeks, successively, published in the county where the tional clause at the end as follows: principal place of business of the corporation is. In "Married women may become corporators, officers lieu of the publiciiticm. personal notice may be given and members of religious, benevolent, art, literary or to each member or stockholder thereof; educational corporations." 2. Two thirds of the members, if there is no capit«l (b) The original section provided that private cor- stock, and if there is a capital stock, then stockholders poratiouB might be formed for certain speciticd pur- representing two thirds of it, must vote iu favor of poses and none other. It designated such purposes in such continuance; twenty-sfevtn su I divisions. They are here omitted on 3. A copy of the proceedings of this meeting giving account of their lergth the names of all persons present, tlie votes tiiken, the (c) Original section: notice calling the met ting, and the proof of its publi- Seo. 28t'. Any existing corporation formed under any cation or service, all duly certitied by the president law of this state, for any purpose designated in any sub- and secretary of the corporation, "'"st be filed iu the division of the precedii-g section, may, at a meeting of offices of the secretary of state and clei k of tlie c<>unty its .-Dembers or stockholders, cal ed for that purpose, where the articles of incorporation are on file There- continue its existence, under Title I of this part, or un- after such corporation is possessed of all the rights der the provisions of any subs quent title particularly and powers, and subject to al the obligations, re- applicable thereto, as follows: strictions, and limitati.^ns provided in this part ap- 1. Public notice of such meeting, and of its object, plicable thereto, and its corporate existence is con- must be given by publishing the same in a daily news- tinned. 39 609 5289-5294 CIYIL CODE. 5289. yame of instruvient creating corporation. Sec. 289. The iustruiuent by wliicli a private corporation is formed is called " articles of incorporation." 5290. Articles of incorporation, what to contain. Sec. 290. Ai'ticles of incorporation must be prepared, setting forth: 1. The name of the corporation; 2. The purpose for which it is foi-med; 3. The place where its principal business is to be transacted; 4. The term for which it is. to exist, not exceeding fifty years; 5. The number of its directors or trustees, and the names and residences of those who are apjiointed for the first year; provided, at any time during the existence of the corporation, the number of the directors may be increased, in corporations for profit, by a majority of the stockholders of the corporation, to any number not exceeding eleven, who must be members of the corporation, whereupon a ceiiificate stating the number of directors must be filed as pro- vided for in section two hundred and ninety-six for the filing of the original articles of incoi*poration ; G. The amount cf its cajiital stock, and the number of shares into which it is divided; 7. If there is a capital stock, the amount actually subscribed and by whom. [Amendment, approved April 1, 1876; Amendments 1875-6, 70; took effect from passage. ^"^ 5291. Certain corporations to state further facts in articles. Sec. 291. The articles of incorporation of any railroad, wagon road or tele- graph organization must also state : 1. The kind of road or telegraph intended to be constructed; 2. The place from and to which it is intended to be run, and all the interme- diate branches; 3. The estimated length of the road or telegraph line; 4. That at least ten per cent, of the cajiital stock subscribed has been paid in to the treasurer of the intended corporation. 5292. Articles to be subscribed and acknowledged — number and qualification of signers. Sec. 292. The articles of incorporation must be subscribed hy five or more persons, a majority of whom must be residents of this state, and acknowledged by each before some officer authorized to take and certify' acknowledgments of conveyances of real property. [Amendment, approved March 30, 1874; Amend- ?He7 52£8. Who are members and who stockholders of corporation. Sec. 298. The owners of shares in a coi'poration which has a cajjital stock are called stockholders. If a corporation has no capital stock, the coiporators and their successors are called members. [Sec. 299 '"' was repealed by act aj^proved March 30, 1874; Amendments 1873-4, 200; took effect July 1, 1874. Afterwards, a new section 299 was adopted and added to the code, as follows:] 5299. Coi'poration to file articles in county n-liere it holds property. Sec 299. No corporation hereafter formed under the jnovisions of this chap- ter shall purchase, locate, or hold property in any county of this state, without filing a certified copy of the certificate of its articles of incorporation in the office of the county clerk of the county in which such j^roperty is situated, within sixty daj's after such purchase or location is made, and every corporation now in existence must, within ninety days after the passage of this act, file a certified copy of the certificate of its articles of incorjioratiou as provideil in this section, and a certified copy of such copy shall, as evidence, have the same force and effect as a certified copy of the original. Any corporation failing to (o) Orioinal section: a body politic and corporate, by tlip name stated in the Sec. 29(i! Upon the tiling of the articles of incorpora- cei-titicate, aiid for the term of lifty years, luiliss it is tion iu the office of ihe county clerk of the county in in the articles of incorporation otlierwise stated, or in which the business of the company is to be trans- this part otherwise specially provided. acted, and a copy thereof with the secretai-y of state, (h) The original section had the word " primary •' the secretary of state must issue to the corpocation, instead of " prima facie." over the great seal of the state, a certificate tjat such (c) Hepealed section: articks, containing the required statement of facts, Sec. 'JUK. If a member of a corporation dies, resigns. have been tiled in his office; and thereafter the persons or is removed, a m jority ot the remamiug members signing the same, and their associates and assigns, are may elect another in his place. 611 J 300. Every corporation that has been or may be created under the general laws of this State, doing a baniiing business therein, and which has no capital stocic, may elect to have a capital stock, and may issue certificates of stock therefor in the s;.me manner as corporations formed under the provisions of Clapter One, Article One, of the Civil Code, relating to the formation of corporations ; pruriJed, that no such cor[)oration shall ise or convert any moneys or funds theretofore belonging to it o- under its control into capital stock, but such funds or money, must beheld and managed oidy for the purposes and in the mamer for which they were created. Before such change is made, majority of the members of such corporation present at a meting called for the purpose of considering the proposi- tion wk'ther it is best to have a capital stock, its amount, and the nuiber of shares into whicli it shall be divided, must vote in favo of having a capital stock, fix the amount thereof, and the uuiber of shares into which it shall be divided. Notice of the tin> and place of holding such meeting and its object must be givt by the Tresident of such corporation by publication in som.newspaper printed and published in the county, or city and eonty, in winch the principal place of business of the cor- poratio is situated, at least once a week for three successive weeks -ior to the holding of the meeting. A copy of the pro- ceedin; of this meeting, giving the number of persons present, the vos taken, the notice calling the meeting, the proof of its publicion, the amoinit of capital actually subscribed, and by whom.ll duly certified by the President and Secretary of the eorpotion, must be filed in the offices of the Secretary of State d Clerk of the county where the articles of incorporation are fiK Thereafter such corporation is posses.sed of all the rights id powers, and is subject to all the obligations, restric- tions, d limitations, as if it had been oriiiinally created with a capi stock. And provided, further, tirat no bank in this State ill ever pay any dividend ujion so-called guaranty notes, uor up any stock except upon the amount actually paid in monefltosaid capital upon such stock, and anv payment made in violon of this provision shall render all officers and direct- ors canting to the same, jointly and severally liable to th depos-s to the extent thereof. t maintain or defend any New section, approved April usage. MEETINGS. [tie must, witliin one montli E by-laws for its goverument this state. Tlie assent of scribed capital stock, or of a ck, is necessary to adopt by- at purpose; and in the event blie same by advertisement in \e principal place of business . therein, then in a paper pub- rder of the acting- president, f the stock, or of two thirds [ be effectual to adopt a code Amendment, approved March 1, 1874.'''> be elected annually by the [In effect Mav _28tji, 1S78.] stockholders or members, and if no provision is made in the by-laws for the time of election, the election must be held on the first Tuesday in June. Notice of such election must be giyen, and the right to vote determined as prescribed in section 301. 5303. By-larcs, for v:lmt may provide. Sec. 303. A corporation may, by its bj'-laws, where no other jDrovision is specialh' made, provide for: 1. The time, place, and manner of calling and conducting its meetings; 2. The nuujber of stockholders or members constituting a quorum; 3. The mode of voting by proxy; 4. The time of the annual election for directors, and the mode and manner of giving notice thereof; '). The compensation and duties of officers; 0. The manner of election and the tenure of office of all officers other than the directors; and 7. Suitable penalties for violations of by-laws, not exceeding, in any case, one hundred dollars for any one offense. [Amendmeiit, approced 3Iarc}i 30, 1871; Awnidnimfs 1873-4, 20; took effect July 2, 1874. <"> S»c. .',01. Kvriit)"ii. ii.lfii-t a code ..f by-liiwH for Its govf-rn- ni« ul not iiiroiinhtciit with tbe •onPlitutiou and Iuwh of tliiH i-ti.tc. Notlie of KiK-l) nKflliiK. by order of the ('>) Orifednal section : Sec. 3n:j. A corponition may, by its by-laws, ■whrre no other provisiou is Hiieeiiilly made, provide: 1. The time, place, and manner of calling and couduiting their meetings; ;•. The number of fctoililiolders or nieiiiljerB, or the quantity of Btock coi/Btituting a quo- rnni ; 3. The number of gliares which entitles the stock- n.tiiig i.refcideiit, sperlfylnu its "d.ji.t. iiiunt be pub- holders respectively to one or more votes: 4. The mode liHh.-,| two week)- In Konie newsi.npei- i.ubliHhed in the of voting by proxy; 5. The time and place of the an county where the meeting 1h to be h< Id; or if none l8 . - ■ • ^ ■^ I.uldi^bed 111" rein, then In n piiiier].ublish<-.l in an ad- joining i-ounty. In the adoption of the by-laws, each rtockholder hns i.s loriny v< tes as he holils shiires of htock: If tliere Is rjo cai)ifHl stork, each nii uibrr has one vote. A majority of all the siibscrlbeil eaplt.il stock, or of the memberH, If there Is no cai>ltal stock, is oece.sHary to adopt the by-laws, or any one ol them. nual election for directors, and the mode and manner of giving notice thereof; 0. The mode of selling shares for the non-payment of assessmeutB or installments; 7. The i-onipensatiou and ,.«;„„ „h,o^«-^ri of the capital stock; nor must they create debts beyond their siibscribed capital stock, or reduce or increase the capital stock, except as hereinafter si^ecially provided. For a violation of the provisions of this section, the directors under whose administration the same may have happened (except those who may have caused their dissent therefrom to be entered at large on the minutes of the directors at the time, or Avere not present when the same did happen), are, in their indi- vidual and private capacity, jointly and severally liable to the cor^Doration, and to the creditors thereof, in the event of its dissolution, to the full amount of the capital stock so divided, withdrawn, paid out, or reduced, or debt con- tracted; and no statute of limitations is a bar to any suit against such directors for any sums for which they are made liable b}' this section. There may, how- ever, be a division and distribution of the capital stock of any corporation which remains after the payment of all its debts, upon its dissolution, or the expira- tion of its term of existence. 5310. Removal from office of directors, etc. Sfx'. 310. No director shall be removed from office, unless 'by a vote of two thirds of the members, or of stockholders holding two thirds of the capital stock, at a general meeting held after previous notice of the time and place, and of the intention to propose such removal.' Meetings of stockholders for this puri)ose may be called by the president, or by a majority of the directors, or by members or stockholders holding at least one half of the votes. Such calls must Ije in writing, and addressed to the secretary, who must thereupon give noti(re of the time, place, and object of the meeting, and by whose order it is called. If the secretary refuse to give the notice, or if there is none, the call («) Ori(finalsr-cti(.n: (6) Original section: >r.<-. :«)!,. M th<- first meeting raHefl. ns rood as the Sec. 3U7. All elections must be by ballot, and unless by-IawH are aflojited, uiilr hk it in imjvided that theoffl- otherwise prescribed by the by-laws, a majority of the f< PK UHiix-d in the artideK of incorporation shall con- subscribed capital stock or of the members is ueces- tinu<- until n < crtaiii other date, directors must be sary to a choice. elect.-d, B majority i>i the subscriljed capital stock, or of the jiieiiibers, being necessary to a choice G14 CORPORATIONS— GENERAL PROVISIONS. 5310-o315 may be addressed directly to the members or stockholders, and be sen-ed as a notice, in which case it must specify the time and place of meeting. The notice must be given in the manner provided in section 301 of this title, unless other express provision has been made therefor in the by-laws. lu case of removal, the vacancy may be filled by election at the same meeting. 5311. Justice of peace viay order meeting, when. Sec. 311. Whenever, from any cause, there is no person authorized to call or to preside at a meeting of a corporation, any justice of the peace of the county where such corporation is established, may, on written application of three or more of the stockholders or of the members thereof, issue a warrant to one of the stockholders or members, directing him to call a meeting of the corpora- tion, by giving the notice required, and the justice may in the same warrant direct such person to jDreside at such meeting until a clerk is chosen and qualified, if there is no other ofiicer present legally authorized to preside thereat. 5312. Majority of stock must be represented, and majority vote at elections. Sec. 312. At all elections or votes had for any purpose there must be a Tnaioviiv of the subscribed capital stock, or of the members, represented, either at^iui,' ■^'"'''^ ''"^iTead "at thp ;ncto„ c ^ ■" acting therein, in person or * e°'''7A3L': .t'"- ^"l-^ ^i- S' «! elt" :. : -* l^ereof or a boLa fide .lock- least ten clays pui^x ^^ ._ r election had other than in accordance with the provisions of this article is voidable at the instance of ab- sent stockholders or members, and may be set aside by petition to the district court of the county where the same was held. Any regular or called meeting of the stockholders or members may adjourn from day to day, or from time to time, if for any reason there is not present a majority of the subscribed stock or members, or no election or majority vote had — such adjournment and the reasons thereof being recorded in the journal of proceedings of the board of directors. 5313. Stock of minors, insane, or deceased, hoio represented. Sec. 313. The shares of stock of an estate of a minor, or insane person, may be represented by his guardian, and of a deceased person by his executor or administrator. [Amendment, apjpjroved Ilarch 30, 187-1; Amendments 1873-4, 203; took effect July 1, 1874.'^' 5314. Election may he jjostponed. Sec. 314. If from any cause an election does not take place on the day ap- pointed in the by-laws, it may be held on any day thereafter as is provided for in such by-laws, or to which such election may be adjourned or ordered by the directors. If an election has not been held at the appointed time, and no ad- journed or other meeting for the purpose has been ordered by the directors, a Tr.o^+i,-,r>. winv hfi called bv the stockholders, as provided in section 310 of this § 315, Upon the application of any person or body cor- I porate aggrieved by any election held by any corporate body, I the District Court of the district in which such election is held yarding elections. j must proceed forthwith to hear the allegations and proofs of . 'body coriiorate a""grieved by i the parties, or otherwise inquire into the matters of complaint, ,. ,■■ °"/. ,-> -i • ' and thereupon confirm the election, order a new one, or direct proceedings tnereoi, tne Clis- such other relief in the premises as accords with right and ; held must proceed forthwith ' i"pSf.^' ^^'"^^7'"•'^ f"' ^,^?^''«"' «'"^ ^I'^fo'"^ '^".J further pro- ^^ parties, or otherwise in- ceedmgs are had under this section, five davs' noUce of the '■ ' hearing must be given, under the direction of the Court, or the a confirm the election, order I Judge thereof, to the adverse party or those to be affected thereby. [In effect, April 1, 1878.] ^^^^.^„^ ^, ^^^ corporation by the legal es of the person holding the same. 615 5315-5321 CIVIL CODE. a new one, or dii-ect sucli otLer relief in tlie premises as accords with right and justice. Before any proceedings are had under this section, five days' notice thereof must be given to the adverse party, or those to be affected thereby. 5316. Officers liable for false cerlificales, reports or notices. Sec. 316. Any officer of a corporation who willfully gives a certificate, or willfully makes an official report, public notice, or entry in any of the records or books of the corporation, concerning the corporation or its business, which is false in any material representation, shall be liable for all the damages re- sulting therefrom to any person injured thereby; and if two or more officers unite or participate in the commission of any of the acts herein designated, they shall be jointly and severally liable. [Amendment, approved March 30, 187-4; Amendments 1873-4; 203; took effect Juhj 1, 1874.^''' 5317. Meeting by consent to be valid. Sec. 317. When all the stockholders or members of a corporation are present at any meeting, however called or notified, and sign a written consent thereto on the record of such meeting, the doings of such meeting are as valid as if had at a meeting legally called and noticed. 5318. Proceedings at meeting to be binding. Sec. 318. The stockholders or members of such corporation, when so assem- bled, may elect officers to fill all vacancies then existing, and maj' act upon such other business as might lawfully be transacted at regular meetings of the coi*poration. 5319. Meetings, ivJiere held. Sec. 319. The meetings of the stockholders and board of directors of a corpo- ration must be held at its office or principal place of business. 5320. When no provision in by-laws for regular meetings, special meetings, hoio called. Sec. 320. When no provision is made in the by-laws for regular meetings of the directors and the mode of calling special meetings, all meetings must be called b}' special notice in writing, to be given to each director by the secretary, on the order of the president, or if there be none, on the order of two directors. 5321. Book and notice of directors and stockholders of banks. Sec 321. Every corporation doing a banking business in this state, must keep in its office, in a place accessible to the stockholders, depositors, and creditors thereof, and for their use, a book containing a list of all stockholders in such corporation, and the number of shares of stock held by each; and eveiy such corporation must keep posted in its office, in a conspicuous place, accessible to the public generally, a notice signed by the president or secretary, showing: 1. The names of the directors of such corporation; 2. The numl^er and value of shares of stock held by each director. The entries on such book and such notice shall be made and posted within twei^,ty- four hours after any transfer of stock, and shall be conclusive evidence against eadi director and stockholder of the number of shares of stock held by each. Tlie provisions of this section shall apply to all banking corporations formed or existing before twelve o'clock noon of the day on which this code took effect, as well us to tliose formed after such time. [Neiv section, approved January 29, 187G; Amendments 187o-G, 72; took effect sixtirtJi day after passage. la) Original fWTtlon: or had fuU opportunity to know the same to be false, Sec. 310. Any >.m(KSSMENT OF SxoCK 331 ARTICLE I. STOCK AND STOCKHOLDERS. 5322. stockholders liable fur debts. Sec 322. Each stockholder of a corporation is individually and pP^iHlljL liable for such pnj])ortion of its debts and liabilities as thie'amount of'^ock or shares owned by him bears yi the whole of the subscribed capita'^tock or shares of the coiixn-ation, and/for a like proportion only of^^ each d el^|[^.c|siin| V^ainst the corporatjon.j Any creditor of the corporation may inptute joint or severaT action s again/t any of its stockholders for the 2:)ro])Oi-tion ^^^ claim, payable l)y each, and in such action the court must ascertain the ©portion of "^ , the claim or debt for which each defendant is liable,f^and_a sev'iLJl'jloiii^iiij must be rendered against each, in conformity thereA\^itii.j If ^stockholder /^ pays his proporfion of aiiy~clebt due from the Corpora ti<5n, inr'^'^^ Avhile he was such stockholder, he is relieved from any further personal "'•^^^^^J ^©1* such V .«..V •/-•^ CI 8 CORPOEATIOXS— GENERAL PROVISIONS. 5322-5324 debt; and if an action Las Leen Liouglit against hi la u])Oii siicli debt, it shall l»o dismissed as to him, upon his payinjif the costs, or such proportion thfrcof u« , may be properly chargeable against him. The liability of each stcjcklmhlcr is ^ determined by the amount of stock or shares owned by him at the tiinc the debt or liability was incurred; and such liability is not released by any subsequent transfer of stock. The term stockholder, as used in this section, shall ujtply not only to such persons as appear by the books of the corporation to be such, but also to every equitable owner of stock, although the same appear on tho books in the name of another, and also to every person who has advanced tho installments or purchase-money of stock in the name of a minor, so long as tho latter remains a minor; and also to everj'^ guardian or other trustee who volun- tarily invests any trust funds in the stock. Trust funds in the hands of a guardian or trustee shall not be liable under the provisions of this section by reason of any such investment, nor shall the person for whose benefit the in- vestment is made be responsible in respect to the stock, until he becomes com- petent and able to control the same; but the responsibility of the guardian or trustee making the investment shall continue until that i)eriod. Stock held as collateral security, or by a trustee, or in any other representative capacity, does not make the holder thereof a stockholder within the meaning of this section, except in the cases above mentioned, so as to charge him with any proportion of the debts or liabilities of the corporation; but the pledgor, or j^erson, or estate represented, is to be deemed the stockholder as respects such lialnlit}'. In corporations having no capital stock, each member is individvially and per- sonally liable for his jDroi^ortion of its debts and liabilities, and similar actions may be brought against him, either alone or jointly with other members, to enforce such liability as by this section may be brought against one or more stockholders, and similar judgments may be rendered. The liability of each stockholder of a corporation formed under the laws of any other state or terri- tory of the United States, or of any foreign country, and doing business within this state, shall be the same as the liability of a stockholder of a corporation created under the constitution and laws of this state. \Amendmetd , approved March 15, 1876; Amendments 1875-6, 73; took effect sixtieth day after passage }•■ 5323. Certificates, how and when issued. Sec. 323. All corporations for profit must issue certificates for stock when fully paid up, signed by the president and secretary, and may provide, in their by-laws, for issuing certificates prior to the full payment, under such restrictions and for such puri)oses as their by-laws may provide. 532.^. Transfer of shares. _ Sec 324. Whenever the capital stock of any corporation is di^aded into shares, and certificates therefor are issued, such shares of stock are personal property and maj be transferred by indorsement by the signature of the proprietor, or his attorney or legal representative, and delivery of the certificate; but such trans- fer is not valid, excei^t between the parties thereto, until the same is so entered upon the bjoks of the corporation as to show the names of the parties by and to (a) Original se»tion: given Beverally in conformity therewith If nny Fto-k. Sec. 322. Each BX,okhoiaer or member of any corpo- ho'der or m.-mber of a coriioralion I'Hy* m*- 1 "^l 'J'''"'' ° ration is Beverany.mdividiially, and personally liable of any debt due by such corroratinn he is rele Bed and for such proi5ortion vf all its debts and liabilities as the discharged from any furi her ludividual or 1"> ;"«» amount of stock or glares owned by him in such cor- liability for such debt. Stock held as « ••';''"/;''"■ poration bears to tha^vhole of the subscribed capital rity, or by a trustee, or n. »'jy /l"'*'^. f '^''^;'^"' "' .' ' stock or shares ot the corporation, for the recovery <.f capacity, docs not make the ''''''1"^ »"";'' "'''''[^ which joint or severa. actions may be instituted and IcoUler.but the pledgor or person or estate represent, d prosecuted: and in aujsuch action against any of the is the stockholder. .„,„„,i„j >,.. ,rt of M«r.-h stockholders or members of a corporal ion. the court The section was previously amended »> '^ f'f ^«r h mu^t ascertain and det^-mine the proportion of the 30. 1874; Amc"' wents ly..J-».20<. so as to re. d K. he debt which is the subject of the suit for which each amendment in the text, ^''''l^^,'''"* ' J'';."''!.!i!' * \il of the stockholders or me^ibers who are defendants in la>t sentence, coniiueucmg with the \xoraB lue ua- the action are severally liable, and judgment must be bility of each stocklioiaer. \ 619 5324-5332 CB^L CODE. whom transferred, tlie number or designation of tlie shares, and the date of the transfer. 5325. SJia7^es held by mat^ined women, etc. Skc. 325. Shares of stock in corporations held or owned by a married woman may be ti'ansferred by her, her agent or attorney, without the signature of her husband, in the same manner as if such married woman were a femme sole. All dividends payable upon any shares of stock of a corporation held by a mar- ried woman may be paid to such married woman, her agent or attorney, in the same manner as if she were unmarried, and it is not necessary for her husband to join in a receipt therefor; and any proxy or power given by a married woman touching any shares of stock of an}' corporation owned by her, is valid and binding without the signature of her husband, the same as if she were unmar- ried. 5326. Xon-1-esident stockholders. Sec. 326. "When the shares of stock in a corporation are owned by parties residing out of the state, the president, secretary or directors of the corpora- tion, before entenng any transfer of the shares on its books, or issuing a certifi- cate therefor, to the transferee, may rec[uire from the attorney or agent of the non-resident owner, or from the person claiming under the transfer, an affidavit or other evidence that the non-resident owner was alive at the date of the trans- fer, and if such affidavit or other satisfactory evidence be not furnished, may require from the attorney, agent or claimant, a bond of indemnity, with two sureties, satisfactory to the officers of the corporation, or if not so satisfactory, then one apjiroved by a district judge, or the county judge of the county in which the princijjal office of the corporation is situated, conditioned to protect the coi-poration against any liability to the legal rej^resentatives of the owner of the shares, in case of his or her death before the transfer; and if such affidavit or other evidence or bond be not furnished when required, as herein provided, neither the corporation, nor any officer thereof, shall be liable for refusing to enter the transfer on the books of the corporation. [Amendment, approved March 30, 187tt; Amendments 1873-4, 205; took effect July 1, 1874.^'^^ AKTICLE II. ASSESSMENTS OF STOCK. 5331. Directors may levy assessments. Sec. 331. The directors of any corporation formed or existing under tb3 laws of this state, after one fourth of its capital stock has been subscribed, nay, for the purpose of paying expenses, conducting business, or paying debts, .evy and collect assessments upon the subscribed capital stock thereof, in the manner and form, and to the extent provided herein. [Amendment, approved Marcli 30, 1874; Amendments 1873-4, 200; took effect July 1, 1874.^''> 5332. Limitation of assessments. Sec. 332. No one assessment must exceed ten per cent, of the amount of the (a) Original Bcction: Ky to Uie legal representatives o Uie owner of such Ke<--. .JiiC Jn all tranhffTH of (.hares of Ktork In corpo- stock, in case of his or her death jeforc surli transfer; ratlon«,on hihalf of owneni residing 5337. Delinquent notice. {Sec. 337. If any portion of the assessment mentioned in the notice remains unpaid on the day specified therein for declaring the stock delinquent, the sec- retary must, unless otherwise ordered by the board of directors, cause to be published in the same papers in which the notice hereinbefore provided for shall have been jjublished, a notice substantially in the following form: (Name in full. Location of principal place of business.) Notice. — There is delinquent ujjon the following described stock, on account of assessm.ent levied on the (date), (and assessments levied iDrevious thereto, if any), the several amounts set opposite the names of the resj^ective shareholders, as follows: (Names, number of certificate, number of shares, amount.) And in accordance with law (and an order of the board of directors, made on the [date], if any such order shall have been made), so many shares of each parcel of such stock as may be necessary', will be sold, at the (particular place), on the (date), at (the hour) of such day, to pa_y delinquent assessments thereon, together with costs of advertising and expenses of the sale. (Name of secretary, with location of office.) 5338. Contents of notice. Sec. 338. The notice must specif}^ every certificate of stock, the number of shares it represents, and the amount due thereon, except where certificates may not have been issued to parties entitled thereto, in which case the number of shares and amount due thereon, together with the fact that the certificates for such shares have not been issued, must be stated. 5339. Publication of notice. Sec 339. The notice when published in a daily paper, must be published for ten days, excluding Sundays and holidays, previous to the da^' of sale. "When published in a weekly paper, it must be ijublished in each issue for two weeks previous to the day of sale. The first publication of all delinquent sales must be at least fifteen days prior to the day of sale, 5340. Jurisdiction acquired, hoio. Sec. 340. By the publication of the notice, the corporation acquires jurisdic- tion to sell and convey a perfect title to all of the stock described in the notice of sale upon which any portion of the assessment or costs of advertising re- mains unpaid at the hour ajipointed for the sale, but must sell no more of such stock than is necessary to pay the assessments due and costs of sale. 5341. Sale to be by ptuljUr auction. Sec. 341. On the day, at the place, and at the time appointed in the notice of sale, the seci-etary must, unless otherwise ordered by the directors, sell or cause to be sold at public auction, to the highest bidder for cash, so many shares of each i)arcel of the described stock as may be necessary to pay the assess- ment and charges thereon, according to the terms of sale; if payment is made before the time fixed for sale, the party paying is only requii-ed topaythe actual cost of advertising, in addition to the assessment. (a) OriglnHl Bcctlon: the place where situated is not necessary. If there is Sec. :t-Ui. Tlic imtite must be published once each no newspaper pnblisUed at the. place deBifuatcd as the week for four BU<.-i-<-HKlve wofkH. in Home daily or principal place of business of the corporation, then •ttci'kly jMipcr ]inbliKh(-(l at the plm-e (lisi(,'nated in the the publication must bo made in the newspaper pub- articles of incorporation as the i>rin jl^ o^womf trin-liirh 1. Ly a maiority vote of the directors there may be A. The notice must also contaii. the amount to which cal ed Vii^eting of the stockholders, to be convened it is proposed to i"<-"'"^«"^;'";">"*^»' '''«jX?inV2^ for the piupose of increasing or of diminishing the 4. The capital st..ck "i"; ',^X;;rt,™/^t w^ cBTiitni ctrw^v- to an amount less tlian the indebtedness oJ tne corpo- Tpei^onal notice ot the time and place of such ^^ ^T^^^'^'^'^^' '^f.^'}^^^;:'^:^ meeting, and the object thereof, n>ust be served on be the object or purpose ol the orpor,^^^ each stockholder resident in this state; or. in lie;i 5. At le.st four tuths ol aU the .apital s^^^^^^ thereof, the notice must be published in every issue of represented at such meeting, and at least two thirds of 40 (325 5360-5361 CIVIL CODE. 5360. Acquisition of real properly. Sec. 360. No corporation shall acquire or liold any more real property than may be reasonably necessary for the transaction of its business, or the construc- tion of its works, except as otherwise specially provided. A corporation may acquire real property, as provided in Title YII, Part III, Code of Civil Pro- cedure, when needed for any of the uses and purposes mentioned in said title. [Amendment, approved March 30, 1874; Amendments 1873-4, 208; took effect July 1, 1874.^'' [Fur title of Code of Civil Procedure referred to, see post, 11,237.] An Act to aiithoiize corporations to own and improve the lots and houses in which their business is carried on. Approved April 1, 187G; 1875-6, 653. May hold lot, etc. Section 1. By unanimous consent of its members or stockholders, any corpo- ration existing under the laws of this state may acquire and hold the lot and house in which its business is carried on, and may improve the same to any extent required for the convenient transaction of its business. Sec 2. This act shall take efi'ect immediately. 5361. Consolidation of mining corporations. Sec 361, It shall be lawful for two or more corporations formed, or that may hereafter be formed, under the laws of this state, for mining purposes, which own or possess mining claims or lands adjoining each other, or lying in the same vicinity, to consolidate their capital stock, debts, property, assets, and fran- chises in such manner and upon such terms as may be agreed upon by the respective boards of directors or trustees of such companies so desiring to con- solidate their interests; but no such consolidation shall take j)lace without the writtt'Ti consent of the stockholders representing two thirds of the capital stock of each company; and no such consolidation shall in any way relieve such com- panies, or the stockholders thereof, from any and all just liabilities; and in case of such consolidation, due notice of the same shall be given by advertising for one month in at least one newspaper in the county and state where the said mining property is situated, if there be one published therein, and also in one new.spaper published in the county, or city and county, where the principal place of business of any of said companies shall be. And when the said con- solidation is completed, a certificate thereof , containing the manner and terms of said consolidation, shall be filed in the office of the county clerk of the county in wliich the original certificate of incorporation of any of said companies shall be filed, and a copy thereof shall be filed in the office of the secretary of state. Such certificate shall be signed by a majority of each board of trustees or direc- tors of the original companies; and it shall be their duty to call, Avithin thirty days after the filing of such certificate, and after at least ten days' public notice, a meeting of the stockholders of all of said companies so consolidated, to elect a board of trustees or directors for the consolidated company for the year thence next ensuing. The said certificate shall also contain all the requirements pre- e the entire capital Ktock must vote in favor of 6iicli in the office of the county clerk and one in the office of increi.be ' r diminution hi l<,re the Hauieis effected; the secretary of Btate, as provided for original articles C. A certificate, higncd and verilied by the chairman of incorporation, and thereupon the capital stock is so and secretary of the meetm),', must hi- made, showing increased or diminished, a strii't compliance with all the reurposes of the directors, and duplicates made, one to be liled therein mentioned. 626 CORPORATIONS— GENEKAL PROVISIONS. 53fil-5383 scribed by section 290 of said Civil Code. [New section, approved Mi ml, 2i^, 187G; A^nendments 181 5-G, 75; took effect from pas^mrje. An Act to add another section to the civil code. Approved March 20, 1875-G; AmendmentB 1875-C, 75. [Sec. 1 contains the additional section 3G1 to the Civil Code above iuserted.] Sec. 2. This act shall apply to all corporations formed under the la-\vs of tliis state, whether formed under the said Civil Code, or prior thereto. Sec. 3. This act shall take effect from and after its passage. ARTICLE n. RECORDS. 5377. Becords, of ivhat and how kept. Sec 377. All corporations for profit are required to keej) a record of all their business transactions; a journal of all meetings of their directors, members, or stockholders, with the time and place of holding the same, whether regular or special, and if special, its object, how authorized, and the notice thereof given. The record must embrace every act done or ordered to be done; who were present, and who absent; and, if requested by any director, member, or stock- holder, the time shall be noted when he entered the meeting or obtained leave of absence therefrom. On a similar request, the ayes and noes must be taken on any proj^osition, and a record thereof made. On similar request, the ju-otest of any director, member, or stockholder, to any action or proposed action, must be entered in full— all such records to be open to the inspection of any director, member, stockholder, or creditor of the corporation. 5378. Other records to be kept by corporations for profit, and others. Sec 378. In addition to the records required to be kept by the preceding section, corj)orations for profit must keep a book, to be known as the " Stock and Transfer Book," in which must be kept a record of all stock; the names of the stockholders or members alphabetically arranged; installments paid or unpaid; assessments levied and paid or unpaid; a statement of every alienation, sale, or transfer of stock made, the date thereof, and by and to whom; and all such other records as the by-laws prescribe. Corporations for religious and benevolent purposes must provide in their by-laws for such records to be kept as may be necessary. Such stock and transfer book must be kept open to the inspection of any stockholder, member, or creditor. ARTICLE III. EXAHnXATION OF CORPORATIONS, ETC. 5382. Examination into affairs of corporation by state officers. Sec 382. The attorney-general or district attorney, whenever and as often as required by the governor, must examine into the affairs and condition of any corporation in this state, and report such examination, in writing, together with a detailed statement of facts, to the governor, Avho must lay the same before the legislature; and for that purpose the attorney -general or distiict attorney may administer all necessaiy oaths to the directors and officers of any corpora- tion, and may examine them on oath in relation to the affairs and condition thereof, and may examine the books, papers, and documents belonging to such corporation, or appertaining to its affairs and condition. 5383. Examination made by the legislature. Sec 383. The legislature, or either branch thereof, may examine into the affairs and condition of any corporation in this state at all times; and, for that 627 o3S3-:;0C2 CITIL CODE. purpose, any committee appointed by the legislature, or either branch thereof, may administer all necessary oaths to the directors, officers, and stockholders of such corporation, and may examine them on oath in relation to the affairs and condition thereof; and may examine the safes, books, papers, and docu- ments belonging to such coi-poration, or pertaining to its aifairs and condition, and compel the production of all keys, books, papers, and documents by sum- mary process, to be issued on ai^plication to any court of record or any judge thereof, under such rules and regulations as the court may prescribe. 5384. Chaph'r and arliclc may he repmled. Sec. 38-i. The legislature may at any time amend or repeal this part, or any title, chapter, article, or section thereof, and dissolve all corporations created thereunder; but such amendment or repeal does not, nor does the dissolution of any such corporation, take away or impair any remedy given against any such corporation, its stockholders or officers, for any liability which has been previousl}' incuiTed. ARTICLE IV. JUDGMEXT AGAIKST AND SALE OF CORPOEATE PROPEKTY. 5388. Franchise may be i^old under execution. Sec. 388. For the satisfaction of any judgment against a corporation author- ized to receive tolls, its franchise and all the rights and privileges thereof may be levied upon and sold under execution, in the same manner and with like effect as any other property. [Amendment, ai^proved March 30, 1874; Amend- menis 1873-4, 208; took effect July 1, 1874.'"' 5389. Purchaser to transact business of corporation. Sec 389. The purchaser at the sale must receive a certificate of purchase of the franchise, and be immediately let into the possession of all property neces- sary for the exercise of the powers and the receijit of the proceeds thereof, and must thereafter conduct the business of such corporation, with all its j)owers and privileges, and subject to all its liabilities, until the redemption of the same, as hereinafter provided. 5390. Purchaser may recover penalties, etc. Sec. 31)0. The purchaser or his assignee is entitled to recover any penalties imposed by law and recoverable by the corporation for an injury to the franchise or property thereof, or for any damages or other cause, occurring during the time he holds the same, and may use the name of the cori:)oration for the pur- pose of any action necessary to recover the same. A recovery for damages or any penalties thus had is a bar to any subsequent action by or on behalf of the cori^oratiqn for the same. 5391. Corporation to retain powers after sale. Sec. 391. Tlie corporation whose franchise is sold, as in this article provided, in all other respects retains the same powers, is bound to the discharge of the same duties, and is liable to the same penalties and forfeitures, as before such sale. 5892. liedernption of franchise. Sec. 392. Tlie corporation may, at any time within one year after such sale, redeem tlie franchise, by paying or tendering to the purchaser tliereof the sum paid therefor, witli ten per cent, interest thereon, but without any allowance for the toll-wliich he may in the meantime have received; and upon such jmyment or tender the franchise and all the rights and privileges thereof revert and be- long to the corporation, as if no such sale had Ijeen made. (a) The original section, InstfRi] of " authorized to receive toUs," liad the words" organized for i)ront." 628 COKPORATIONS-GENERAL PROVISIONS. 5393-5403 5393. Sale, under execution, xohere. Sec. 393. The sale of any franchise under execution must he made in the county in which the corporation has its i)rincipal i)hice of business, or in wljich the property, or some portion thereof, upon which the taxes are paid, is situ- ated. [Amendment, approved JIarch 30, 1874; Amendments 1873-4 209 • took effect July 1,181 4: y^ CHAPTER IV. EXTENSION AND DISSOLUTION OF COBrORATIONS. 5399. Proceedings to dinincorporcde. Sec. 399. The dissokition of corporations is provided for: 1. If involuntary— in Chapter V of Title X, Part II, of the Code of Civil Pro- cedure ; 2. If voluntary— in Title VI, Part III, of the Code of Civil Procedure. (See post, 10,802 and 11,227.] 5400. On dissolution, directors to be trustees for creditors. Sec. 400. Unless otlier persons are ai)pointed by the court, the directors or managers of the affairs of such corporation at the time of its dissolution are trustees of the creditors and stockholders or members of the corporation dis- solved, and have full power to settle the affairs of the corporation. 5401. May extend term of existence. Sec. 401, Every corporation formed for a period less than fifty years may, at any time prior to the expiration of the term of its corijorate existence, extend such term to a period not exceeding fifty years from its formation. Such exten- sion may be made at any meeting of the stockholders or members, called by the directors expressly for considering the subject, if voted by stockholders repre- senting two thirds of the capital stock; or by two thirds of the members; or may be made upon the written assent of that number of stockholders or mem- bers. A certificate of the proceedings of the meeting upon such vote, or upon such assent, shall be signed by the chairman and secretary of the meeting and a majority of the directors, and be filed in the o£&ce of the count}' clerk, where the original articles of incorporation were filed, and a certified coi:)y thereof in the office of the secretary of state, and thereujoon the term of the corporation shall be extended for the specified period. [Amendment, approved Alarrli 30, 1874; Amendments 1873-4, 209; took effect July 1, 1874.''" [Sec. 402^"^ was repealed by act approved March 30, 1874; Amendments 1873-4, 209; took effect July 1, 1874.] 5403. Title I to apply to all corporations, ivith certain exceptions. Sec. 403. The provisions of this title are applicable to every corporation, unless such corporation is excejoted from its operation, or unless a sjpecial pro- la) Original section: (c) Repealed set-tion: Sec. :i9.i. The levy and sale of any franchise under Sec. itfi. AH corporations may continue their exist- execution may be had iu any county in which the enco for an additional period, not excetdiut'tifty years, president or any director, the treasurer or the secre- by tiling a cirtiticate, verified by the alli.laxif .f the tary of the corporation may reside, or iu which the president and secretary, settin},' furth that, at u meet- corporation has its principal place of business. ing of four fifths of the nienibirti or stork, and ■>u a (6) Original section: two thirds vote thereof, it was determimd to ccintiniie Sec. 4of. Every corporation heretofore formed, for sucli corporation for such additional length of time; any purpose enumerated in this title for which cor- the meeting of the stockholders or members to be had porations may be formed, for a period of time less than after notice thereof, pnblislie.cv ^ i formed under the laws of any other State or country as a mu- ates gold COm, aud has available tual insurance company, transact any such insurance business' in this State, unless such person, corporation, or association possesses available cash assets equal to at least two hundred thousand dollars, over and above all liabilities for losses re- ported, expenses, taxes, and reinsurance of all outstanding risks, as provided :n said section six hundred two of the Polit- tical Code of this State. [In effect, April 1, 1878.] ^ 420. Every company, corporation, or aseociation here- after formed or organized under the laws of this State for the tran-action of buftinef-fi in any kind of infiurance not enuraer- al*d in section 419 of the Civil Code, muBt have a Bubfecribed c«pital Htock equal to at least one hundred thouBand dollars, which must be paid in at the times and in the manner pre-' scribed for the payment of the capital HUjck of a corporation organized under section four hundred and nineteen of said Civil Code. Xo company, corporation, or aKsociation, formed or organized under the laws of any other State or country as a stock company, rnugt tram-act any' such insurance buginegs in this State without a paid up capita! rtock of not Icf-s than one hundred thousand dollars in available (sn-.h aesets-, over and aUjve all liabilities for losses reported, expenses, taxes, and reiDi?urance of all ouutanding risks, as provided in section 602 of the Political Code of this Sute. Nor must any company, corporation, or association, formed or organized under the laws' of any other Sute or country as a mutual insurance company, transact any such insurance business in this State unless such company, corporation, or association possesses available cash assets efjual to at least one hundred thousand dollars over and above all liabilities for loci-es reported, expenses, taxes, and re- insurance of all outstanding risks, as provided in said section six hundred and two of the Political Code of this State. [In effect April 1, 1676.] ' 1* hundred tliousarid dollars in sses, reported expenses, taxes, tided in sections six hundred oust any individual or person, under the laws of any other transact any kind of insurance s such person or coqx.>ration hundred thousand dollars in ;ilities for losses reported, ex- ^ risks, as provided in section I state. [Amendment, approved feci sixtieth day after paaHafje.^'"^ X)I1P0BATI0X8. I paid in tvjelve raordh?. 3 or marine insurance corpora- tion must bepaia up m casn wituia twcivc xxx-^xxi-hs from the filing of the articles of incorporation, and no policj' of inswance niusi be issued or risk taken until twent^'-five per cent, of the whole capital stock is paid up. 5425. Certificate of ca'[/iial ntock paid up to be filed, and when. Sec. 425. The president and a majority' of the directors must, within thirty days after the payment of the twenty-five per cent, of the capital stock, and also within thirty days after tlie payment of the last installment or assessment of the capital stock limited and fixed, prepare, subscribe, and swear to a certifi- cate setting forth the amount of the fixed capital and the amount thereof paid up at the times respectively in this section named, and file the same in the office of the county clerk of the county where the principal place of business of the corporation is located, and a duplicate thereof, similarly executed, with the insurance commissioner. 5426. Properly v:hlch may he insured. Hec. 42C. Every corporation formed for fire or marine insurance, or both, •itViin the scope of its articles of thiH ^n'J'r the laws of ! ' V • ' '•*"'''*<=^"'" "f f^"«i"'--H« in any kind of insur- anr:e may mvest the.r capital and accumulations in the follow- lufi named n-.riiniiHH : nf rhlVni'l ""^r'^rchaHe of or loans upon interest-bearing bonds oJ the Lnit«uu;h Government ; '/■««— In the purchase of or loans upon interest-bearing bonds nre^—Ir. the purchase of or loans upon interert-bf^rinr, bont ; ^•''''^^^'"'» °o» >n default for interest on such F^mr-ln loans ufK.n unincumbered real propertv or unon nerchand.se .n warehouse, worth at least one hundred r^r cent more than the amount loaned. ' But no investment in the securities named in subdivisions one two. and three of thi. section must be made in amount ex! ceeding the par value of such securities, nor exceedinrthe^r market value. [In effect, April 1 1878 1 "^^^^^^^'ng their ration may, by its board of in loans upon real or per- ;, or other securities, but uo a, or on the notes or obliga- aj/proved March 30, 1874; 08 must never take, on any isurance against fire, a sum aid in, and intact at the time of t). ki/j'I h-:Tih doll.. wIj<;" \>',Uiy. iii ia>tiillni< /.^ iitg the ten. ve ni'/nthc froin tht 'jryjTtXVju. Hut iu\i->X. any iu- brgoD be perrnltt<>tic. In any kind of InHur^inc*-, .. 8Tjy exc-pt on liv<- aUxik, unleKH hik It in-.rivui or (:orj>e'.ti«,._Thc entire capital stock • pr^;j:;;:i;';;::;;;!J:;:;;::r;i »:-;?■£'« i;;;!;;;;;;. .f..vo o,^a„i.oa „na now ii-xperiencc Table of Mortalitv, an.l interest at the rate of four *ll*J l^WS of this state, fOF and one-hall per cent, per annum. [In effect, April 1, 187.S.] d of saving property and thill tiiiy miiniciiml corpo- ration of this state, shall have power, at its own proi)cr cost and exiicnso, to maintain a corps of men, Avith proper officers, ecpiipiuHl with the necessary macliinery and apparatus therefor, whose duty it shall be, so far as practicable, to discover and ])revent tires and save pr<^pcrty and humtm life from contlagni- tion; and for the cllVictivo discharge of such duties, power and authority is hereby granted such corps to enter any building on lire, or in Avliich ju-operty is on lire, or which such corps or any officer thereof shall deem to be immeili- ately exposed to any existing tiro, or in danger of taking lire from a burning building, and to remove or otherwise save and i)rotect from c.)nll)igiiition or damage by water any ])roperty, during and immediately after such tire; pro- vided, ]iow(!ver, that nothing in tliis act shall be so construed as in any degree to less(vn, imjitiir, or interfere with the powers, privileges, duties, or authority of the regiihir tire department of such municipality; and provided further, thnt no act of such corps simll justify tiny owmn- of any building ov property in abandoning such building or property. ■ („) The ,ni,'innl section l,ml I he xvords " er cither " nftrr ■• eori-oratiouB." but .UJ nut liayo U.o WorUB " anJ liiliu'tul thti liiiio of tiiklug tiiu'h risk." C33 6430-5437 CIVIL CODE. Privileges granted to fire patrol corps. Sec. 2. Such corporation, with its officers and corps, when i-unning to a fire, shall, with its horses, vehicles, and salvage apparatus, have the same right of way as is or may be bestowed by any ordinance of the municipality or law of this state upon the regular fire department of the municipality wherein such corporation is acting; provided, that the rights of such fire dej)artment shall always bo paramount to the rights of said coriDoration. All ordinances now existing or which may hereafter be passed by the mvmicijial authorities of any city and county, or of any incorporated city or town wherein such a corporation may carry on business, and all laws of this state ajDplicable to such city and county, or city or town, for the conviction or punishment of any person or per- sons willfully or carelessly obstructicg the progress of the apparatus of the fire department of such city and county, or city or town, while going to a fire, or of any person or jjei'sons willfully or carelessly injuring any animal or property of said fire dei3artment, shall be equally applicable to any person or persons willfully or carelessly obstructing the progress of the ajijDaratus of such corpo- ration while going to a fire, and to any j^erson or persons who shall willfully or carelessly injure any animal or proj)erty of such corporation; and said laws and ordinances, and their penalties, may be enforced in the same coui-ts and in the same manner, and with equal force and effect, as in the case of the fire depart- ment. Costs and expenses of maintaining organization, lioiv assessed. Sec. 3. Each such corporation shall have j^ower to assess its members for the cost of establishing and maintaining its organization, upon the basis of insur- ance business transacted by such members within the municipality where such corporation is carrying on business, and in such manner as is or may be provided for by its by-laws, and all assessments so made may be duly enforced under and by virtue of the laws of this state. For the purpose of ascertaining the basis of such assessments such corporation shall have j^ower to require and demand from each and every member thereof, quarterly statements, sworn to by the president or secretary, in case the insurance company or member on which the demand is made shall be incori:)orated under the laws of this state, or otherwise by the agent of the company who shall be recognized as such by the insurance commissioner of this state, which quarterly statement shall show the aggregate amount of premiums received and receivable for fire insurance upon proi)ei-ty within such municipality, by said company or member, diu-ing the three months next preceding, resj^ectively, the thirty-first day of March, the thirtieth day of June, the thirtieth day of September, and the thirty-first day of December, in each year, and a demand by the secretary or treasurer of such corporation, made within fifteen days after the termination of any such quarter of a year, as hereinabove set forth, shall be considered the demand herein provided for, and any member who shall fail to make such statement within ten days after such demand, shall, for each day's delay after such ten days, forfeit ten dollars, to be added to such member's next assessment, and payment thereof to be enforced in like manner as is jn-ovided for enforcing payment of assessments. Sec. 4. This act shall take effect and be in force from and after its i:)assage. CHAPTEE III. MUTUAL LIFE, IIF.ALTJI AND ACCIDENT INSURANCE CORPORATIONS. 5437. Capital stock — Guarantee fund. Sec. 437. Everj' coi-jioration formed for the purpose of mutual insurance on the lives or health of jiersons, or against accidents to persons for life or any 634 INSUKANCE CORPORATIONS. 5437-5440 fixed period of time, or to purcluise and sell annuities, must have a ciqtUn] stock of not less than one Luudred thousand dollars. It must nut make any insur- ance upon any risk or transact any other business as a corporation until its capital stock is fully paid up in cash, nor until it lias also obtained a fund, to be known as a " Guarantee Fund," of not less than two hundred and fifty thou- sand dollars, as hereinafter provided. If more than the retpiisite ain'ouiit is subscribed, the stock must be distributed pro rata amonj^- the subsi-ribcrs. Any subscription may be rejected by the board of directors or the cominittoe tliereof, either as to the whole or any part thereof, and must be, so far as rejected, with- out effect. 5438. Of what guarantee fund shall consist. Sec. 438. The guarantee fund mentioned in the preceding section must con- sist of the promissory notes of solvent parties, approved by the l)oard of direc- tors and by each other, payable to the corporation or its order, and at such times, in such modes, and in such sums, with or without interest, and confonn- able in all other respects to such requirements as the board of directors pre- scribe; but the amount of the notes given by any one person must not exceed in the whole the sum of five thousand dollars, exclusive of interest. Such note must be payable absolutely and at the option of the corporation; they must be negotiable, and may be indorsed and transfen-ed, or converted into cash, or otherwise dealt with by the corporation, at its discretion, without reference to any contingency of losses or expenses. Such notes, or the proceeds thereof, must remain with the corporation as a fund for the better security of persons dealing with it, and constitute the assets of the coriDoration, liable for all its debts, obligations and indebtedness next after its assets from jDremiums and other sources, exclusive of capital stock, until the net earnings, over and above its expenses, losses and liabilities, shall have accumulated in cash, or securities in which the net earnings have been invested, to a sum which, with the capital stock, is equal to the aggregate of the original amounts of the guarantee fund and of the capital stock. 5439. What constitutes, and deficiency infixed capital. Sec. 439. The sum accumulated as jjrovided in the preceding section, together with the capital stock, shall become and remain the fixed capital of the corpor- ation, not subject to division among the stockholders or jDarties dealing with it, or to be exj^ended in any manner otherwise than may be required in payment of the corjioration's debts and actual expenses, until the business of the corpora- tion is closed, its debts paid, and its outstanding policies and obligations of every kind canceled or j^rovided for; and if from any cause a deficiency at any time occurs in such fixed capital, no further division of profits must take place until such deficiency has been made uj). 5440. Declaration of fixed capital to he filed. Sec. 440. Whenever the fixed capital of the corporation is obtained as here- inbefore provided, the president of the corporation and its actuary, or its sec- retary, if there is no actuary, must make a declaration in writing, sworn to be- fore some notary public, of the amount of such fixed capital, and of tlie par- ticular kinds of property composing the same, with the nature and amount of each kind, which must be filed with the original articles of incoi-jwration, and a copy, certified by the county clerk, must be published for at least four suc- cessive weeks, in a newsj^aper published in the county Avhere the priucijial busi- ness of the corporation is situated. Upon the filing of such declaration the guarantee fund is discharged of its obligations, and all notes of the fund re- maining in the control of the corporation, and not aflected by any lien thereon, 635 5440-5444 CH'IL CODE. or claim of that nature, must be sun-endered by it to tlie makers thereof, respectively, or other parties entitled to receive the same. 5441. Guarantee notes and interest, hoiv disposed of. Sec. 441. Until the guarantee fund is discharged from its obligations, as pro- ^^ded in the preceding section, no note must be withdrawn from the fund, unless another note of equal solvency is substituted therefor, with the approval of the board of directors. The corporation must allow a commission, not exceeding five per cent, per annum, on all such guarantee notes while outstanding, and also interest on all moneys j^aid on such notes by the parties liable thereon, at the rate of twelve per cent, per annum, payable half yearly until repaid by the corporation, unless the current rate of interest is diiferent from this amount, in which case the rate payable may, from time to time, at intervals of not less than one year, be increased or reduced by the board of directors, so as to conform to the current rate. [Amendment, approved March 30, 1874; Amendmentsl^l^-4i, 210; took effect July 1, 1874.^"^ 5442. Insured to be entitled to vote, iclien. Sec 442. After the filing of the declaration of the fixed capital, as in this article l5ro^•ided, the holders of policies of life insurance for the term of life, on which the premiums are not in default, may vote at the election of directors, and have one vote for each one thousand dollars insured by their policies, respectively. 5443. May invest in what securities. Sec. 443. The number of directors 'sj^ecified in the articles of incorporation may be altered from time to time during the existence of the corporation by resolution, at the annual meeting of a majority of those entitled to vote at the election of directors, but the nu.mber must never be reduced below five. 5444. Investment of capital stock, on what securities. Sec 444. Life, health, and accident insurance corporations may invest their capital stock as follows: 1. In loans upon unincumbered and improved real propert}' within the State of California, which shall be worth at the time of the investment at least forty j)er cent, more than the sum loaned; 2. In the jmrchase of or loans upon interest-bearing bonds, and other secu- rities of the United States and of the State of California; 3. In the jmrchase of or loans upon interest-bearing bonds of any of the otlier states of the Union, or of any county, or incorporated city, or city and county in the State of California; 4. In the purchase of loans upon any stocks of corporations formed under the laws of this state, except of mining corjiorations, which shall have, at the time of the investment, a value, in the city and county of San Francisco, of not less than sixty per cent, of their par value, and shall be rated as first-class securities; but no loans shall be made on any securities specified in subdivis- ions three and four of this section, ia any amount beyond sixty per cent, of the market value of the securities, nor shall any loan be made on the stock of the corjjoration, or notes or other obligations of its corporators. \Amendment, approved March 30, 1874; Amendments 1873-4, 211; took effect July 1, 1874.^'^' (a) Original pectlon: notes by the parties liable thereon, at the rate of Sec. 441. Until the gnarniitoe fund is diBchurgod twolvo per ciut. per annum, pnynblo half yeiirly until from ItH oblit'dtioHH, an provided in the iM-erediuf,' Hec- repaid by the corporation. But Fuch rate of interest tiou, no noteniuKt be withdrawn from the luiid.uuleBB may, from time to time, at intervals of not Ubs than another note of equal Bolveniy is huljBtituted tlierefor, one year, be increased or reduced by the board of di- with the unauiniouK ui)proval of th.- board of directors rectors, so as to conform to the then current rates of tlien in ollieciind of all othi-r parties liable on the rest Interest, cf the notes comprising the guarantee fund. The cor- {b) Original section: porati.jn must allow a commission of hvcr jier cent. Sec. 444. Life, health, and accident insurance corpo- per annum on all such guarantee notes while out- rations may invest their capital slock as follows: BtandlDi,', and also iutcrcBt on all moneys paid on such 1. In loans upon luiiucunibered and improved real G3G INSURANCE CORPORATIONS. 5445-5449 5445. Limitations to holding of stock, etc. Sec. 445. The corporation miiy, by its by-laws, limit the uumbor of bhures which may be held by any one person, and make such other provisions for tho protection of the stockholders and the l)etter security of those doalinj,' with it us to a majority of the stockholders may seem proper, not inconsistent with the provisions of this title or part. 5446. Premiums, how payable. Sec. 446. All premiums must be payable wholly in cash, or one half or a greater proportion in cash, and the remainder in promissory notes bearing,' interest, as may be provided for by the by-laws. Agreements and policies of insurance made by the corporation may be upon the basis of full or partial participation in the profits, or without any participation therein, as may be pro- vided by the by-laws and agreed between the parties. 5447. Insurance commissioner to be furnished with valuation of policies outstand- ing. Sec. 447. Every life insurance corporation organized under the laws of this state must, on or before the first day of February of each year, furnish the in- surance commissioner the necessary data for determining the valuation of all its policies outstanding on the thirty-first day of December then next preced- ing. And every life insurance company organized under the laws of any other state or country, and doing business in this state, must, upon the written requi- sition of the commissioner, fvirnish him, at such time as he may designate, the requisite data for determining the valuation of all of its policies then outstand- ing. Such valuations must be based upon the rate of mortality established by the American exiDcrieuce life-table and interest at four and one half per cent, per annum. For the purpose of making the valuations, the insurance com- missioner is authorized to employ a competent actuary, whose compensation for such valuations shall be three cents for each thousand dollars of insurance; to be paid by the respective companies whose policies are thus valued. [Amend- ment, ajjproved March 30, 1874; Amendments 1873-4, 211; took effect July 1, 1874.'^> 5448. No stamp required on accident insurance contract. Sec. 448. No stamp is required nor stamp duty exacted on any contract of insurance, when such contract insures against accident which ma}' result in injury or death. 5449. Valuation of policies — Retaliatory provision. Sec 449. "When the certificate of the insurance commissioner of this state, of the valuation of the policies of a life insurance company, as provided in section 447 of the Civil Code of this state, issued to any company organized under the laws of this state, shall not be accepted by the insurance authorities of any other state, in lieu of a valuation of the same, by the insurance officer of such other state, then every company organized under the laws of such other state, doing business in this state, shall be required to have a separate valuation of its estate -within the State of California, which shall be fied in subdivisions 2, 3, and 4 of this section In any •worth at the time of the investment at least tifty per amount beyond ^ixty vcr cent, of the niarket vBlue or ceiit. more than the sum loaned; the securities, norshall any loan be made on the stock 2. In the purchase of or loans upon interest-bearing of the corporation niahing the loan. Btockg,bonds, and other securities of the United States, («) Onyiual section: i„„i>„.j and of the stutes thereof- Sec. 447. Every lite insurance con'oration doing busl- 3. lu the purchase of or loans upon interest-bearing ness in this si ate. or fornied undi r the prov sions of bonds of aijy incorporated city, or city and county, in this part, must, on or belore the hrst Mondaj In Jiiuu- the State of California; »>•>• of each year. furu:sh the n.suraiue ^■;;'' J' •■>';"" 4. In the purchase of or loans upon any stocks of the necessary d,da lor deternuniut' the ^..3 ion f^l companies and corporations formed under tlie laws of ;t«P^l>'-^'-""t''V'.'"'"'^\''" ,V ,V , .."^f^Vho 1 ,^^^^ this state, except mining stocks, which shall have, at ber next precvLling: ^vhich va u« ..n ";">:» ';f'»^!f the time of the investment, a value, in the city and upon therateol ".'-.'^tahty ases ablisl.ed b> « •'• Aimrl- county of San Francisco, of not less than sixty per can experience hie table. /.^'■/«''; ,1'^ '" .^,7,"' '" cent, of their par value, and shall be rated astirst-class be assumed must be four and one half per tent, per securities. annum. But no loans shall be made on any securities speci- 637 5449-5455 CIVIL CODE. policies made imder the authority of the insurance commissioner of this state, as provided in section 447 of the Civil Code. [New section, approved March 30, 1874; Jmendmenfs 1873-4, 270; (oak effect sixtieth day after passage. 5450. Policy, to conlaiu ichat evidence — Penalty. .i 450. Every poTicv of ■ ' '^ ' — "•""'^'^ unon life issued hereafter within the ■oidddivcred witi.in tlie liniitHrthrstTof'/^V'^'"'''-''''''' '''"^'^ 1 ov Corporation, organized su;ir°:;;,- .3-t- oSr-t^ -^I^-'Ds^^^: 'ther state or country, or by agent of sud. person or cornorafinn ,1^'' ."'" '-"^""^''J'. or by the ain written evidence that it Po'r'^ion"' '■/;r" '■"^"^'^ '■" '''^' «tate. "a ..rt'ilf " "o ""^ "''" ^^ ^^^ this state, which shall poratiOD, rtn,/j';(fo,„g„^y/ . ^. . f^'"| fit person or cor- -ithout ,i.e evi-ieJ^; ^^^h^^J^JfT:^ ^'^^ policy. ^f the holder null and void, people of the State of California the sum of orf. i Y"^' ^° *^"« without the evidence here- for cash [eiieh] and every Doli-v «n ; i *" '^""'^'■''<^ tiollars eu ^ r r. vi- • i- i, the Insurance Commissioner bv\, if ?'^' ''^ ^' •■ecovere.l by ^tate of California, for each of the State of California, in aLclZlr "'""*' °^ "'^ People ed dollars in United States In effect, April 1 1878 ^ ^^^'^°f'''''''Pet<^nt jurisdiction ■ -^ n .• . F"j, 10/8.J J ">u/ci/o?i. loner, as j)rovided by section 598 of the Political Coae. ^^.v. Ma7-ch 30, 1874; Amendments i 451. Under any policy of insurance on life hereafter is- sued and delivered in this State, whether by a person, or cor - poration organized under the laws of California, or under those . „ . , ., of any other State or country, the holder thereof, at any time ^^^ °* insurance lierealter during the continuance of the policy, shall be entitled to claim d holder thereof, presented and recover of the insurer-any stipulation or condition of for- ^^le agent of SUch person feiture contained in the ))olicy or elsewhere to the contrary not- ° . ■"- withstanding— a surrender value, to be determined as follows :)erson or corporation must, The net value of the policy, at the time of demand upon the in- q(J of payment pay to the surer for settlement and liquidation of the same, shall be ascer- -, r ' ^ -J tained according to the American Experience Rate of Mortality, '^^ policy, a SUm equal tO with interest at four and one-half per centum per annum ; from such policv, as ascertained such value shall be deducted and canceled any indebtedness of .f co^fi^r. "f;/17 r^f +1ia Piiril the assured growing out of the policy, and a surrender charge ^^ feection^ 04 < OI tne i^ivu to the company, to be ascertained as follows : Assumins: the e liquidation of SUch policy, rates of mortality and interest as aforesaid, the present value ilg 1873-4 270* toolc effect of all the future contributions of the policy to pay death claims, ' ' or, in other words, of all the normal future yearly costs of in- surance which by its terms it is exposed to pay, in case of its continuance, shall be calculated, and eight per centum of this sum shall be the legal surrender charge, and the remainder of the net value of the policy ascertained as aforesaid, after de- ducting this surrender charge, anil any del)ts due the insurer as aforesaid, shall be payable to the insured in cash within sixty days after the amount is ascertained. If there shall not have been a settlement and liquidation of the policy as hereinbefore provided, ami it shall have lapsed by reason of the non-payment of a premium, the insurer must nevertheless continue it in force 5454 as provided in the next ensuing section. [In effect, April 1 54G5 '"'1 ::::::;:;::;:::;::: 5479 .s 452. The net value of the policy, at the expiration of the terra for which the full amount of premiums shall have been paid, must be ascertained and determined in accordance with the formula set forth in the preceding section. After deducting [. from such net value any indebtedness to the insurer growing out of the policy, and canceling the same, anil deducting also a surrender charge, as ascertained in accordance with the pro- visions of said preceding section, the remainder of such net value shall be considered as a net single premium of insurance. And in the case of any policy, other than an endowment, the amount whicliit will insure as a life policy shall be determined according to the age of the insured at the time of the lapse of the policy, and the rates of mortality and interest assumed in determining the net value of the same. In the case of an en- dowment, i)ayable at a certain time, or at death, if it should previously occur, the remainder of the net value of the policy, ascertained iis hereinbefore reciuired, shall be considered as a net single premium of endowment insurance, and the amount wljich it Mill insure as'an endowment for the unexpired term of the pDli«v, shatr be determined, according to the age of the in- sured anil 'the rates of mortality and interest assumed in deter- mining the net value of the^oliey. As thus adjusted, the policy is to.ljue xonsiiriered as continued in force, in accordance with its ori"Ui#l teniuB, except (or a smaller amount ; which said amount shiT^ be, by the company, indorsed on the policy as paid up in- surance. K elected at a meeting of lajority of the fixed cap- e; notice thereof to be aws in Article II, Chap- f stock. ;ransferable until all the paid in; nor is any such .less at least twenty per erefor, and the transfer RAILEOxVD CORPORATIONS. 545C-54C5 5456. Corporations may horroio monry and ^^•^•(lfi boncJs. Sec. 450. Railroad corporations may borrow, on the credit of tlio corporation and under such reguhitions and restrictions as the directors thereof, by unani- mous concurrence, may impose, such sums of money as may be necessary for constructing and completing their railroad, and may issue and dispose of bonds or promissory notes therefor, in denominations of not less than live hundred dollars, and at a rate of interest not exceeding ten per cent, per annum; and may also issue bonds or promissory notes, of the same denomination and rate of interest, in payment of any debts or contracts for constructing and complet- ing their road, with its equipments and all else relative thereto. The amount of bonds or promissory notes issued for such purposes must not exceed, in all, the amount of their capital stock; and to secure the payment of sucli bonds or notes, they may mortgage their corporate property and franchise. 5457. To provide sinking fund to pay bonds. Sec. 457. The directors must provide a sinking fund, to be specially applied to the redemption of such bonds on or before their maturity, and may also con- fer on any holder of any bond or note so issued, for money borrowed or in pay- ment of any debt or contract for the construction and equipment of such road, the right to convert the principal due or owing thereon into stock of such cor- poration, at any time within eight years from the date of such bonds, under ffuch regulations as the directors may adopt. 5458. Capital stock to be fixed. Sec. 458. When, at any time after filing the articles of incorporation, it is ascertained that the capital stock therein set out is either more or less than act- ually required for constructing, equipping, operating and maintaining the road, by a two third vote of the stockholders the capital stock must be fixed, and a certificate thereof, and of the proceedings had to fix the same, must be made out and filed in the office of the secretary of state. 5459. Certificate of payment of fixed capital stock. Sec. 459. Within thii'ty days after the payment of the last installment of the fixed capital stock of any railroad corj)oration organized under this title and part, the president and secretary and a majority of the directors thereof must make, subscribe and file in the office of the secretary of state a certificate, stating the amount of the fixed capital stock, and that the whole thereof has been paid ' in. The certificate must be verified by the affidavit of the president and secre- tary. CHAPTER II. ENUMERATION OF POWERS. 5465. Enumeration of powers. Sec. 465. Every railroad corporation has power: 1. To cause such examination and surveys to be made as may be necessary to the selection of the most advantageous route for the railroad; and for such pur- poses their officers, agents and employees may enter upon the lands or waters of any person, subject to liability for all damages which they do theret... May accept real estate. . . 2. To receive, hold, take and convey, by deed or otherwise, as a natural per- son, such voluntary grants and donations of real estate and other i)ruperty which may be made to it to aid and encourage the consti-uctiou, maintenance, and accommodation of such railroad. May acquire real estate, . . ■ ■*- ■ 3. To purchase, or by voluntary grants or donations td i^ceive, ente^^tuke 639 - y''^: 54G5 CIVIL CODE. possession of, hold and use all sucli real estate and other property as may be absolutely necessary for the eonstructfon and maintenance of such railroad, and for all stations, depots and other purposes necessary to successfully work and conduct the business of the road. Laij out road, hoxo iiside. 4:. To lay out its road, not exceeding nine rods wide, and to construct and maintain the same, with a single or double track, and with such appendages and adjuncts as may be necessary for the convenient use of the same. Where may construct road. 5. To construct their road across, along or upon any stream of Avater, water- course, roadstead, bay, navigable stream, street, avenue or highway, or across any railway, canal, ditch or flume, which the route of its road intersects, crosses, or runs along, in such manner as to afford security for life and property; but the corporation shall restore the stream or watercourse, road, street, avenucj highway, railroad, canal, ditch or flume, thus intersected to its former state of usefulness, as near as may be, or so that the railroad shall not unnecessarily impair its usefulness or injure its franchise; thus intersected to its former state of usefulness, as near as may be, or so that the railroad shall not unnecessarily impair its usefulness or injure its franchise. 3Iaij cross or connect roads. G. To cross, intersect, join, ot unite its railroad with any other railroad, either before or after construction, at any point upon its route, and upon the gi-ounds of such other railroad corporation, with the necessary turnouts, sidings, and switches, and other conveniences in furtherance of the objects of its con- nections; and every corporation whose railroad is, or shall be hereafter, inter- sected by any new railroad, shall unite with the owners of such new railroad in forming such intersections and connections, and grant facilities therefor; and if the two corporations cannot agree upon the amount of compensation to be paid therefor, or the points or the manner of such crossings, intersections, and connections, the same shall be ascertained and determined as is provided in Title VII, Part III, Code of Civil Procedure. [See post, 11, 237.] IMay purchase land, timber, stone, gravel, etc. 7. To purchase lands, timber, stone, gravel, or other materials, to be used in the construction and maintenance of its road, and all necessary appendages and adjuncts, or acquire them in a manner provided in Title VII, Part III, Code of Civil Procedure, for the condemnation of lands; and to change the line of its road, in whole or in part, whenever a majority of the directors so determine, as is provided hereinafter; but no such change must vary the general route of such road, as contemplated in its articles of incorporation. Carry persons and freight. 8. To cany persons and property on their railroad, and receive tolls or com- pensation therefor. Erect necessary buildings. 9. To erect and maintain all necessai'j^ and convenient buildings, stations, depots, fixtures, and machinery for the accommodation and use of their passen- gers, freight, and business. Regulate time and freights, subject to legislation. 10. To regulate the time and manner in which passengers and property shall be transported, and the tolls and compensation to be paid therefor within the limits prescribed by law, and subject to alteration, change, or amendment by the legisluture at any time. 640 RAILKOAD COEPORATIONS. 54G5-5470 Regulate force and speed. 11. To regulate the force and speed of tlieir locomotives, cars, trains, or other niachiueiy used and employed on tlieir road, and to establish, execute, and enforce all needful and pro})er rules and regulations for the management of its business transactions usual and proper for railroad coriiorations. 5466. Map and profile to be filed. Sec. 4G6. Every railroad corporation in tliis state must, uitliin a reasonable time after its road is finally located, cause to be made a map and i)rolile tliereof, and of the land acquired for the use thereof, and the boundaries of the several counties through which the road may run, and file the same in the oflice of the secretary of state; and also like maps of the parts thereof located in different counties, and file the same in the office of the clerk of the county in which such parts of the road are, there to remain of record forever. The maps and profiles must be certified by the chief engineer, the acting president and secre- • tary of such comj)any, and copies of the same, so certified and filed, be kept in the office of the secretary of the corporation, subject to examination by all parties interested. 5467. 3Iay change line of road. Sec. 467. If, at any time after the location of the line of the railroad and the filing of the maps and profiles thereof, as provided in the preceding section, it appears that the location can be improved, the directors may, as provided in subdivision 7, section 465, alter or change the same, and cause new maps and profiles to be filed, showing such changes, in the same offices where the origi- nals are of file, and may proceed, in the same manner as the original location was acquired, to acquire and take possession of such new line, and must sell or relinquish the lands owned by them for the original location, within five years • after such change. No new location, as herein provided, must be so run as to avoid any points named in their articles of incorporation. 5468. Forfeiture of franchise. Sec. 468. Every railroad corporation must, within two years after filing its original articles of incorporation, begin the construction of its road, and must every year thereafter complete and put in full operation at least five miles of its road, until the same is fully completed; and upon its failure so to do, for the period of one year, its right to extend its road beyond the point then completed is forfeited. 5469. Crossings and intersections. Sec. 469. Whenever the track of one railroad intersects or crosses the track of another railroad, whether the same be a street railroad, wholly within the limits of a city or town, or other railroad, the rails of either or each road must be so cut and adjusted as to permit the passage of the cars on each road with as little obstruction as possible; and, in case the persons or corporations own- ing the railroads cannot agree as to the compensation to be made for cutting and adjusting the rails, the condemnation of the right of way over the one for the use of the other road may be had in proceedings under Title YII, Part III, Code of Civil Procedure, and the damages assessed and the right of way granted as in other cases. 5470. Use of streets, alleys, or neater, in cities or toicns. Sec. 470. No railroad corporation must use any street, alley, or highway, or any of the land or water, within any incorporated city or town, unless the right to so use the same is granted by a two third vote of the town or city authority from which the right must emanate. 41 641 5471-3i76 CIYIL CODE. 5471. Bailroads through cities not to charge fare to and from points therein. Slc. 471. No railroad corporation, other than street raih-oads, availing itseK S 471 i5«r..;,^r, f„ u J , J? right of way from city r^^^- ^' ^ " '^?"'' '^"ndred and seventj-one of the Civil i +■ +i Code IS hereby repealed. [In effect, April 1st, 1878 J ^^^ purposes, or lor the purpose of can-yiug passengers lor a consiuexutav^xx, .xom any j^oint to another in the same city, except such roads as are or may he built on the prismoidal or other elevated railroad plan, and chartered for street railroad purposes; provided, that such elevation shall be not less than fourteen feet above the street level. {Amemhne)d, approved April 1, 1876; Amendments 1875-6, 76; took ef/'ect from 5472. When crossing railroads or highways, hoiv other lands are acquired. Sec. 472. Whenever the track of such railroad crosses a railroad or highway, such railroad or higlnvay may be carried under, over, or on a level with the truck, as may be most expedient; and in cases where an embankment or cutting necessitates a change in the Hne of such railroad or highway, the corporation mav take such additional lands and material as are necessary for the construc- tion of such road or highway on such new line. If such other necessaiy lands cannot be had otherwise, they may be condemned as provided in Title VII, Part III, Code of Civil Procedure; and when compensation is made therefor, the same becomes the property of the corporation. [See post, 11,237.] 5473. Corporations may consolidate. Sec. 473. Two or more railroad corporations may consolidate their capital stock, debts, proj)erty, assets, and franchises in such manner as may be agreed upon by their respective boards of directors. No such amalgamation or con- solidation must take place without the written consent of the holders of three fourths in value of all the stock of each corporation; and no such amalgamation or consolidation must in any way relieve such corporation or the stockholders thereof from any and all just liabilities. In case of such amalgamation or con- solidation, due notice of the same must be given, by advertisement for one month in at least one newspaper in each county, if there be one published therein, into or through which such roads run, and also for the same length of time in one paper published in Sacramento and in two papers published in San Francisco; and when the consolidation and amalgamation is completed, a copy of the new articles of incorporation must be filed in the office of the secretary of state. 5474. Slate lands granted for use of corporations. Slc. 474. There is granted to every railroad corporation the right of way for the location, construction, and maintenance of their necessary works, and for every necessary adjunct thereto, over any swamp, overflowed, or other public lands of the state not otherwise disposed of or in use, not in any case exceeding in length or width that which is necessary for the construction of such works and adjuncts, or for the protection thereof, not in any case to exceed two hun- droil feet in width. 5475. (jraut not to emhrarr tovn lots. Six. 475. The grants mentioned in the preceding section do not apply to public lands of the state within the corporate limits of towns and cities, or within three miles thereof. 5476. Wood, stone and earth may he taken from state lands. Sec. 47G. The right to take from any of the lands belonging to the state, (o) 0ri(,'in«l section: autlioritios, mviRt ever uso their road for street rail- Hkc. 471. No railniad corporation, other than Btreet road purpoBCB, or for tlie piiri^ose of carryiii},' paeseu- railroadh, uvniling itBelf of the provihions of tlie pre- gers lor a consideratiou from any point to another in ceding Bettiou and acquiring right of way from city the same city. 642 RAILROAD CORPORATIONS. 547G-5480 adjacent to the works of the corporation, all materials, such as wood, stone and earth, naturally appurtenant thereto, wliich may bo necessary and couvenient for the original construction of its works and adjuncts, is granted to such cor- porations. 5477. Lands to revert to stale, xchen. Sec. 477. If any corporation receiving state lands or appurtenances there- under is dissolved, ceases to exist, is discontinued, or the route or line of its works is so changed as not to cover or cross the lands selected, or the use of the lands selected is abandoned, such selected hinds revert, and the title thereto is rein- vested in the state or its grantees, free from all such uses. 5473. Selections made, how proved and certified to. Sec. 478. When any selection of the right of way, or land for an adjunct to the works of a railroad corporation, is made by any corporation, tlie secretary thei-eof must transmit to the surveyor-general, controller of state and recorder of the county in which the selected lands are situate, a plat of the lands so selected, giving the extent thereof and uses for which the same is claimed or desired, duly verified to be correct; and, if approved, the surveyor-general must so indorse the plat, and issue to the corj^oration a permit to use the same, unless, on petition properly presented to the court, a review is had and such use pro- hibited. CHAPTEE III. BUSINESS, HOW CONDUCTED. 5479. Checks to be affixed to all baggage. Sec. 479. A check must be affixed to every package or parcel of baggage when taken for transportation by any agent or emjaloyee of such railroad cor- poration, and a duplicate thereof given to the passenger or person delivering the same in his behalf; and if such check is refused on demand, the railroad corpoi'ation must pay to such passenger the sum of twenty dollars, to be recov- ered in an action for damages; and no fare or toll must be collected or received from such passenger, and if such passenger has paid his fare, the same must be returned by the conductor in charge of the train; and on producing the check, if his baggage is not delivered to him by the agent or employee of the railroad corporation, he ma}'^ recover the value thereof from the corporation. 5480. Annual repo7^t to be verified. Sec. 480. Every i-ailroad corjwratiou must make an annual report to the sec- retary of state, or other officer designated by law, of its operations for each year, ending on the thirty-first day of December, verified by the oaths of the president or acting superintendent of oj^erations, the secx-etary and treasm-erof such corporation, and file it in the office of the secretary of state, or such other designated officer, by the twentieth day of February, which 'must state: 1. The capital stock, and the amount thereof actually paid in; 2. The amount expended for the purchase of lands for the construction of the road, for buildings, and for engines and cars, respectively; 3. The amount and nature of its indebtedness, and the amount duo the cor- poration; 4. The amount received from the transportation of passengers, property, mails, and express matter, and from other sources; 5. The amount of freight, specifying the quantity in tons; 6. The amount paid for repairs of engines, cars, buildings, and other expenses, in gross, showing the current expenses of running such road; 7. The number and amount of dividends, and when paid; G43 54S0-54S5 CIVIL CODE. 8. The number of engine houses and shops, of engines and cars, and their character. 5481. Duties of corporation. Sec. 481. Eveiysuch corporation must start and run their cars, for the trans- portation of persons and property, at such reguLar times as they shall fix by public notice, and must furnish sufficient accommodations for the transporta- tion of all such passengers and jiroperty as, within a reasonable time previous thereto, oflFer or is offered for transportation, at the place of starting, at the junction of other raih'oads, and at siding and stopping places established for receiving and discharging way passengers and freight; and must take, trans- port, and discharge such passengers and proiierty at, from, and to such places, on the due jjayment of tolls, freight, or fare therefor. 5482. Corporation to pay damages for refusal. Sec 482. In case of refusal by such coi-poration or their agents so to tate and transport any passengers or property, or to deliyer the same, at the regular ap- pointed places, such corporation must pay to the party aggrieved all damages which are sustained thereby, with costs of suit. 5483. Inside room for passengers, etc. — Passengers on freight cars. Sec 483. Every railroad corporation must furnish, on the inside of its pas- senger cars, sufficient room and accommodations for all passengers to whom tickets are sold for any one trip, and for all jDcrsons presenting tickets entitling them to travel thereon; and when fare is taken for transporting passengers on any baggage, wood, gravel, or freight car, the same care must be taken and the same i-esponsibility is assumed by the coi-poration as for passengers on passen- ger cars. 5484. Printed rules and regulations. Sec 484. Every railroad corporation must have printed and conspicuously posted on the inside of its passenger cars its rules and regulations regarding fare and conduct of its passengers; and in case any passenger is injured on or from the platform of a car, or on any baggage, wood, gravel, or freight car, in violation of such printed regulations, or in violation of j^ositive A-erbal instiiic- tions or injunctions given to such passenger in person by any officer of the train, the coi-jioration is not responsible for damages for such injuries, unless the cor- poration failed to comply with the provisions of the preceding section. 5485. Fences — Damages. Sec 485. Railroad corporations must make and maintain a good and sufficient fence on either or both sides of their track and property. In case they do not make and maintain such fence, if their engine or cars shall kill or maim any cattle or other domestic animals upon their line of road which passes through or along the property of the owner thereof, they must pay to the owner of such cattle or other domestic animals a fair market price for the same, unless it occurred throtigh the neglect or fault of the owner of the animal so killed or maimed. Railroad corporations paying to the owner of the land through or along which their road is located an agreed price for making and maintaining bucIj fence, or paying the cost of such fence with the award of damages allowed for the right of way for such railroad, are relieved and exonerated from all claims for damages arising out of the killing or maiming any animals of persons who thus fail to construct and maintain such fence; and the owners of such animals are responsible for any damage or loss which may accrue to such cor- poration from such animals beiug upon their railroad track, resulting from the non-construction of such fence, unless it is shown that such loss or damage occun-ed through the negligence or fault of the coiijoration, its officers, agents, or employees. G44 RAILROAD CORPORATIONS. 5^80-5490 5486. Bell and other regulations of trai)i!>. Skc. -480. A bell, of at least twenty pounds weight, must be placed on each locomotive engine, and be rung at a di.stance of at least eighty rods from the place where the railroad crosses any street, road, or highway, and bo kept ring- ing until it has crossed such street, road, or highway; or a steam whistle must be attached, and be sounded, except in cities, at the like distance, and be kr-[,t sounding at intervals until it has crossed the same, under a penalty of one hun- dred dollars for every neglect, to be paid by the corporation operating the rail- road, which may be recovered in an action prosecuted by the district attorney of the proper county, for the use of the state. The corporation is also liable for all damages sustained by any person, and caused by its locomotives, fi.iiii, or cars, when the provisions of this section are not complied with. 5487. Passenger refusing to pay fare. Sec. 487. If any passenger refuses to pay his fare, or to exhibit or suirender his ticket, when reasonably requested so to do, the conductor and employees of the corporation may put him and his baggage out of the cars, using no unneces- sary force, at any usual stoppiug-place, or near any dwelliug-house, on stojipiug the train. 5438. Officers to ivear badge. Sec. 488. Every conductor, baggage master, engineer, brakeman, or other employee of any railroad corjDoratiou, employed on a passenger train or at sta- tions for passengers, must wear upon his hat or cap, or in some conspicuous place on the breast of his coat, a badge, indicating his office or station, and the initial letters of the name of the corporation by which he is employed. No collector or conductor, without such badge, is authoiized to demand or to receive from any passenger any fare, toll, or ticket, or exercise any of the powers of his office or station; and no other officer or employee, without such badge, has any authority to meddle or interfere with any passenger or propert}'. 5489. Bates of charges. Sec. 489. All railroad corporations must fix and publish their rates of charges for freightage and fares from one depot to another, on their various lines of road in this state, graduated as follows: 1. One rate of charges per mile for a distance of one hundred miles or over; 2. One rate for a distance of seventy five and less than one hundred miles, charging not exceeding ten per cent, per mile more than the first rate. 3. One rate for a distance of fifty and less than seventy-five miles, charging not exceeding fifteen per cent, per mile more than the first rate; 4. One rate for a distance of twenty-five and less than fifty miles, charging not exceeding twenty per cent, per mile more than the first rate; 5. One rate for a distance not exceeding twenty-five miles, charging not exceeding twenty -five per cent, per mile more than the first rate. But in no case, nor in any class of charges hereinbefore named, shall any railroad corporation charge or receive more than ten cents per mile for each passenger, nor fifteen cents per mile for each ton of freight transported on its road. For every transgression of these limitations the coi-poration is liable, to the party sufferiug thereby, treble the entire amount of fare or freightage so charged to such party. In no case is the corporation recpiired to receive less than twenty-five cents for any one lot of freight for any distance. 5490. Passenger tickets, how issued, and to be good for si.r tnonth.^. Sec. 490. Eveiy railroad corporation must provide, and, on being tendered the fare therefor fixed as provided in the preceding section, furnish to eveiy person desiring a passage on their passenger cars a ticket which entitles the pmxhaser to a ride, and to the accommodations provided on their cars, from G45 5490-5491 CIVIL CODE. the depot or station where the same is purchased to any other depot or station on tlie line of their road. Every such ticket entitles the holder thereof to ride on their passenj^er cars to the station or depot of destination, or any iuteruae- diatc station, and from any intermediate station to the depot of destination designated in the ticket, at any time within six months thereafter. Any corpo- ration failing so to provide and furnish tickets, or refusing the passage which the same calls for when sold, must pay to the j)erson so refused the sum of two hundred dollars. 5491. Character of iron rail to he used. Sec. 491. All railroads, other than street railroads and those used excliTsively for carrying freight or for mining purposes, built by corjiorations organized under this chapter, must be constructed of the best quality of iron or steel rails, known as the T or H rail, or other pattern of equal utility. [Aviendmenf^ ap- proved Jllarch 30, 1874; Amendments 1873-4, 212; took effect July 1, 1874.'"' An Act to provitle for the appoiutiueiit of commissioners of trausportatiou, to fix the maxi- mum charges for fruights and fares, and to prevent extortion and discrimination ou raih'oads in this state. Approved April 3, 1876; 1875-G, 783. CHAPTER ONE. Governor to appoint three commissioners. Skction 1. On or before the fifteenth day of May, eighteen hundred and sev- enty-six, the governor shall appoint three competent persons, to be stj'led com- missioners of transportation, who shall hold office for the peiiod of two years and until their successors are appointed and qualified. The persons who are so appointed shall have no official connection with, nor be in the employ of any railroad corporation or conipany, nor shall they, during their term of office, ow^n or be interested in the stock, bonds or other property thereof. Said commis- sioners shall have their office in the state capitol building, at Sacramento. Oath and bond of commissioners. Sec. 2. Befoi-e entering upon the discharge of the duties of their office, each of said commissioners shall take an oath or affirmation to support the constitu- tion of the United States and of this state, and to faithfully and honestly dis- charge his duty as such commissioner, and that he is not an officer, stockholder or employee of any railroad, or in any way interested therein, or a stockholder, officer or employee, or in any way interested in any express or freight company doing business on any of the railroads in the United States, and the said com- missioners shall Ije citizens of this state; they shall each execute and file with the secretary of state an official bond, with good and sufficient sureties, to be ai)i)roved by the governor, in the penal sum of ten thousand dollars, conditioned for the faithful performance of their duties under this act. Salariex. Skc. 3. The salary' of each commissioner shall be three thousand dollars per annum, to be paid by the State of California in the same manner as the salary of otlier state officers are paid. They shall have power to elect one of their number i)reKidcnt of said board, to employ a secretary at a salary of not exceed- ing eighteen hundred dollars per annum, and shall be allowed a contingent fund of not exceeding twenty-five dollars per month to defray the necessary expenses of fuel and stationery; the commissioners and their secretary shall be tra7isported, in the discharge of their duties, over the various railroads owned by corporations within tliis state, free of charge. (o) The original Bcctlon did not have the words " or stoel." G46 RAILROAD CORPORATIONS. 5491 Commissioners to examine roads, bridges, etc., and report needed rejinirs. Sec. 4. It shall be the duty of such commissioners, whenever tlioy shall deom it necessaiy, to inspect all railroads, operated by steam power, within tliis stiite, and to examine the same with reference to the security and accomiii or t<'»n •« to was, at the time of making such demand or receiving obstruct the railroad as bttle as I'^'^^h '''• "^'' ^'''^° such moneys, engaged on or at any car, omnibus, or sm-h works make the same °«|-;«f jyj "'«, '°^"" i^° vehicle of af,y railroad belonging to such corporation, is must shift its rails so as to avoid tUoobbtructlouu made primary evidence that such person so demanding or thereby. receiving such moneys was the agent, servant, or em- (c) Original section: ployee of the corporation so owning, using or employ- Skc. MO. All the provisions ^f T'"« "J "L n streH ing such rii Iron d are api)licable to street railroads, unlesn wh< n' strett (6r(Sigrnarsectionr railr^a'ds are therein speciaUy except, d, „r .he pre. Sec. 5U7. Every city, town, or city and county, grant- visions are palpably inapplii-aOle. 655 5512-5515 Cn^IL CODE. TITLE Y. 5512. Three commissioners to act ivifh surveyor. Sec. 512. "Where a coi-poration is formed fc^r the construction and mainte- nance of a wagon road, the road must be laid out as follows: Three commissioners must act in conjunction with the surveyor of the cor- poration, two to be a2:)pointed by the board of supervisors of the county through which the road is to run, and one by the corporation, who must lay out the proposed road and report their proceedings, together with the map of the road, to the suj)en'isors, as j)rovided in the succeeding section. [Amend- ment, approved March 30, 1874; Amendments 1873-4, 214; took effect July 1, 1874.<''> 5513. Survey and map to he filed and approved by supervisors. Sec. 513. "When the route is surveyed, a map thereof must be submitted to and filed with the board of supervisors of each county through or into w^hich the road runs, giving its general course and the principal points to or by which it runs, and its width, which must in no case exceed one hundred feet, and the superA-isors must either approve or reject the sui"vey. If apjiroved, it must be entered of record on the journal of the board, and such approval authorizes the use of all public lands and highways over which the survey runs; but the board of supervisors must require the corporation, at its own expense, and the corpo- ration must so change and open the highway so taken and used as to make the same as good as thej were before the appropriation thereof; and must so con- struct all crossings of public highways over and by its road, aud its toll gates, as not to hinder or obstruct the use of the same. 5514. lolls, etc., to be collected. Skc. 514. All wagon road corporations may bridge or keep ferries on streams on the line of their road, and must do all things necessary to keep the same in repair. They may take such tolls only on theu* roads, ferries or bridges, as are fixed by the board of supervisors of the proper county through which the road passes, or in which the ferry or bridge is situate, except that in the counties of Klamath, Butte, Del Norte, Plumas, Humboldt and Sierra, the directors may fix their own tolls; but in no case must the tolls be more than sufficient to pay fifteen per cent, nor less than ten per cent, per annum on the cost of construc- tion, after paying for rej^airs and other expenses for attending to the roads, bridges or ferries. If tolls, other than as herein provided, are charged or de- manded, the corporation forfeits its franchise and must pay to the pai-ty so charged one hundred dollars as liquidated damages. [Amendment, approved 3Iarch28, 1874; Amendments 1813-4:, 272; took effect sixtieth day after passage. '^^'^ 5515. No tolls to be cliarged on Jilyhioays or ji^Mic roads. Sec 515, When any highway or public road is taken and used by any wagon road corporation as a part of its road, the corporation must not place a toll gate on or take tolls for the use of such highway or public road by teamsters, trav- elers, drovers, or any one transporting property over the same. (a) The original septlondld not have the first clause specified counties to "fifteen per cent, per annum of do^^Ti to and including the words " as follows." After the amount invested in the coustruction of its road, the last "superviBors" it had the words "who ap- including therein the cost of its bridges and ferries, pointed them." and a dividend among the stocliholders equal to twelve (b) The original section. In addition to the counties per cent, per annum upon tlie amount bo invested," named above, had also " Trinity, Shasta," and " Bislii- etc But this amendment, by operatiim of sectiun "287 you." of the amendatory act (Amendments 187S-4, 'iO'J; post, It was amended by act of March 30, 1R74 f Amend- 8180^, seems never to have taken effect, ments 187;i-i, 21i), so as to restrict the tolls in the G56 WAGON KOAD CORPORATIONS. 551G-5522 5516. Bates of toll to he jiosted at gate. Sec. 516. The corporation must affix and keep up, at or over each gate, or in some conspicuous place, so as to be conveniently retul, a printetl list of the rates of toll levied and demanded. 5517. Toll gatherer may detain persons until they pay toll. Sec. 517. Each toll gatherer may prevent from passin-,' throu^^di his ^';ite per- sons leading or driving animals or vehicles subject to toll, until they shall huvo paid, respectively, the tolls authorized to be collected. 5518. Toll gatherer not to detain any person unnecessarily. Sec. 518. Every toll gatherer who, at any gate, unreasonably hinders or delays any traveler or passenger liable to the payment of toll, or demands or receives from any person more than he is authorized to collect, for each oifcuse forfeits the sum of twenty-five dollars to the j)erson aggrieved. 5519. Persons avoiding tolls to pay five dollars. Sec. 519. Every person who, to avoid the payment of the legal toll, with his team, vehicle, or horse, turns out of a wagon, turnpike, or plank road, or passes any gate thereon on ground adjacent thereto, and again enters upon such road, for each offense forfeits the sum of five dollars to the corporation injured. 5520. Penalties for trespasses on property of corporation. Sec. 520. Every person who: 1. Willfully breaks, cuts down, defaces or injures any mile stone or post on any wagon, turnpike, or plank road; or, 2. Willfully breaks or throws down any gate on such road; or, 3. Digs up or injures any j^art of such road or anything thereunto belong- ing; or, 4. Forcibly or fraudulently passes any gate thereon without having paid the legal toll; For each ofi"ense forfeits to the corporation injured the sum of twenty-five dollars, in addition to the damages resulting from his wrongful act. 5521. Bevenue, hoiv to be ajipropriated. Sec. 521. The entire revenue from the road shall be approj)riated : first, to repayment to the corporation of the costs of its construction, together with the incidental expenses incurred in collecting tolls and keeping the road in repair; and, second, to the payment of the dividend among its stockholders, as provided in section five hundred and fourteen. When the repayment of the cost of construction is completed, the tolls must be so reduced as to raise no more than an amotmt sufficient to pay said dividend, and incidental expenses, and to keep the road in good repair. [Amendment, approved Marcli 30, 1874; Amend- ments 1873-4, 215; took effect July 1, 1874.'^' 5522. May mortgage and hyjxjthecate corporate property . Sec 522. The corporation may mortgage or hypothecate its road and other property for funds with which to construct or repair their road, but no mort- gage or hypothecation is valid or binding unless at least twenty-five per cent, of the capital stock subscribed has been paid in and invested in the consti-uc- tion of the road and appurtenances, and then only after an affinnative vote of two thirds of the cajiital stock subscribed. (n) Orifnnal section- more than an amount Fiifflricnt to pay Incidental ei- Sec. 521°. The entire revenwe derived from the road penees and to keep the road in good repair. Bhall be appropriated: first, to repi.ymeiit to the cor- The aniendiuent in the text was i-yidently drawn In poration the costs of its constxiietion, with tifteen^per ccjiinction with and refers to the aniendnieut u the cent, per annum interest thereon, together with 'the same act ol secti.m f.H. That *nuudu,. nt P'Mn« to incidental expenses incurred in collecting tolls and have been superseded and in fact never to h»>e Uken keeping the road in repair. When the rej aynu'nt is effect. See note to section 514. ante, 6514. completed, the tolls must be so reduced as to raise no 42 , 657 5523-5530 CIVIL CODE. 5523. This title applies to natural persons as well as corporations. Sec. 523. AVlien a wagon, turnpike, or plank road is constructed, owned, or operated by any natural iiersou, this title is applicable to such person in like manner as it is api^licable to corporations. TITLE YI. Bvibgc, Jcvvn, U)l)avf, (tijutc, anh |picr iHorporations. 5528. Corporation to obtain license from supervisors. Sec. 528. No corporation must construct, or take tolls on, a bridge, ferry, •svliarf, chute, or pier until authority is granted therefor by the supervisors. 5529. In what contingencies corporate existence ceases. Sec. 529. Every such corporation ceases to be a body corporate: 1. If, -within six months from filing its articles of incorjDoration, it has not obtained such authority from the board of supervisors; and if ^Yithin one year thereafter, it has not commenced the construction of the bridge, wharf, chute, or pier, and actually exi^ended thereon at least ten per cent, of the capital stock of the corporation; 2. If, within three years from filing the articles of incorporation, the bridge, wharf, chute, or pier is not completed; 3. If, when the bridge, wharf, chute, or pier of the corporation is destroyed, it is not reconstructed and ready for use within three 3'ears thereafter; 4. If the ferry of any such corporation is not in running order within three months after authority is obtained to establish it, or if at any time thereafter it ceases, for a like term consecutively, to perform the duties imposed by law. 5530. Fresident and secretary to make annual report, and what to contain. Sec 530. The president and secretary of every bridge, ferr^'', wharf, chute, or pier cori)oration, must annually, under oath, report to the board of supervisors of the county in which the articles of incorporation are filed: 1. The cost of constructing and providing all necessary appendages and ap- purtenances for their bridge, ferry, wharf, chute, or pier; 2. The amount of all moneys expended thereon, since its construction, for repairs and incidental expenses; 3. The amount of their capital stock, how much paid in, and how much actually expended thereof; 4. The amount received during the year for tolls and from all other sources, stating each separately; 5. The amount of dividends made, and the indebtedness of the corporation, specifying for what it was incurred; 6. Such other facts and i:)articulars respecting the business of the corpora- tion as the board of supervisors may require. This report the president and secretary must cause to be published for four weeks in a daily newsjmper published nearest the bridge, ferry, wharf, pier, or chute, if required by order of the board of supervisors. A failure to make such report subjects the corporation to a penalty of two hundred dollars; and for every week permitted to elapse after such failure, an additional penalty of fifty dollars; payable in each case to the county from which the authority of the corporation was derived. All such cases must be reported by the board of supervisors to the distx'ict attoruoy, who must commence an action therefor. €58 TELEGRAPH CORPORATIONS. 5531-5540 5531. This title to apphj to natural persons alike with cnrpornlions. Sec. 531. When a bridge, ferry, wharf, chute, or pier is constructed, operated, or owned by a natural person, this title is applicable to such person in like manner as it is applicable to corporations. TITLE VII. 5536. May use right of way along icaters, roads, and highivays. Sec. 536. Telegraph corporations may construct lines of telegraj)!! along and upon any public road or highway, along or across any of the waters or lands within this state, and may erect poles, posts, piers, or abutments for supporting the insulators, wires, and other necessary fixtures of their lines, in such manner and at such points as not to incommode, the public use of the road or highway, or interrupt the navigation of the waters. [For an act to facilitate telegraphic communication between America and Asia, approved February 13, 1874, see 1873-4, 97.] 5537. Persons liable for damages for injuring telegraph properly. Sec. 537. Any person who injures or destroys, through want of proper care, any necessary or useful fixture of any telegraph corporation, is liable to the corporation for all damages sustained thereb}'. Any vessel whicli, T)y dragging its anchor or otherwise, breaks, injures, or destroys the subaqueous cable of a telegraph corporation, subjects its owner to the damages hereinbefore specified. 5538. Party guilty of willful and malicious injury, liable to one hundred limes actual damages. Sec. 538. Any person who willfully and maliciously does any injury to any telegraph property mentioned in the preceding section, is liable to the corpora- tion for one hundred times the amount of actual damages sustained thereby, to be recovered in any court of competent jurisdiction. 5539. Conditions on ivhich damage to subaqueous cable may be recovered. Sec. 539. No telegraph corporation can recover damages for the breaking or injury of any subaqueous telegraph cable, unless such corporation has pre- viously erected, on either bank of the waters under which the cable is placed, a monument, indicating the place where the cable lies, and publishes for one month in some newspaper most likely to give notice to navigators, a notice giving a description and the purpose of the monuments, and the general course, landings, and termini of the cable. 5540. If ay dispose of certain rights. Sec. 540. Any telegraph corporation may at any time, with the consent of the persons holding two thirds of the issued stock of the corporation, sell, lease, assign, transfer, or convey any rights, privileges, franchises, or property of the corporation, except its corporate franchise. [Sec. 541<^' was repealed by act approved March 30, 1874; Amendments 1873-4, 216; took effect July 1, 1874. J (a) Renealpfl Kef tion • which must be uniform throughout the state, and pub- SEc.lll Every Utoph corporation must fix uni- lish them by poBting euch rates at each of iheir ollicc-« form rates of charges for transmitting messages pro- in use. portionate to the number of miles the same are sent, 659 5548-5552 CIVIL CODE. TITLE YIIL llMn anb (faiml (forpotatiou^. 5548. Corporation may obtain coiitract to svpphj city or town. Sec. 548. No corporation formed to siipply any city, city and county, or town with water must do so unless previously authorized' by an ordinance of the authorities thereof, or unless it is done in conformity with a contract entered into between the city, city and county, or town and the corporation. Contracts so made are valid and binding in law, but do not take from the city, city and county, or town the right to regulate the rates for water, nor must any ex- clusive right be granted. No contract or grant must be made for a term exceeding fifty years. 5549. Duties of water corporations. Sec. 549. All corporations formed to supply water to cities or towns must furnish pure fresh water to the inhabitants thereof, for family uses, so long as the supply permits, at reasonable rates and without distinction of persons, upon proper demand therefor; and must furnish water to the extent of their means, in case of lire or other great necessity, free of charge. The rates to be charged for water must be determined by commissioners, to be selected as fol- lows: two by the cit}' and county, or city or tow^n authorities, or when there are no city or town authorities, by the board of supervisors of the county, and two by the water company; and in case a majority cannot agree to the valua- tion, the four commissioners must choose a fifth commissioner; if they cannot agree upon a fifth, then the county judge of the county must appoint such fifth person. The decision of the majority of the commissioners shall determine the rates to be charged for water for one year, and until new rates are established. The board of supei-visoi's, or the proper city or town authorities, may jsrescribe proper rules relating to the delivery of water, not inconsistent with the laws of the state. [Amendment, apjproved March 30, 1874; Amendments 1873-4, 21G; took effect July 1, 1874.'=^' 5550. Plight to use streets, ways, alleys, and roads. Sec. 550. Any corporation created under the provisions of this jiart, for the purposes named in this title, subject to the reasonable direction of the board of supervisors, or city or town authorities, as to the mode and manner of using such right of way, may use so much of the streets, ways, and alleys in any town, city, or city and county, or any iniblic road therein, as may be necessary for laying pipes for conducting water into any such town, city, or city and county, or through or into any part thereof. 5551. To build and keep bridges in repair. Si:c. 551. Every Avater or canal cori^oration must construct and keep in good repair, at all times, for public use, across their canal, flume, or water pipe, all of the Ijridges that tlie board of supervisors of the county in Avliich such canal is situated may require, the bridges being on the lines of public highways and iiecoHsary for public uses in connection with such highways; and all water- works must be so laid and constructed as not to obstruct public highways. 5552. liigJd to water to irrigate lands sold by water or irrigating company. Sec. 552. Whenever any corporation, organized under the laws of this state, fur;nshes water to irrigate lands which said corporation has sold, the right to (a) The. original BPctlon did not have tlie words "or of sniiprvisorsof thecouuty." Ini.laceof " amnjurlty " wUen there are no city or town authoritieij by the board It bad " they." 660 HOMESTEAD CORPORATIONS. 5552-55G0 the flow and use of said water is aud sliall reiiiaiu a perpcliial eaKeiuent to the land so sold, at such rates and terms as may be established by said corporation in pursuance of law. And whenever any person wlio is cidtivutiii',' land on tlie line and within the flow of any ditch owned by such corporation, has been furnished water by it with which to irrigate his hand, such person Hlinll be entitled to the coiitinued use of said water, upon the same terms as those who have purchased their land of the corporation. [N<;io section, approviid April 3, 1876; Amendments 1^1 Z-(j, 11-^ took c^'ect from passage. TITLE IX. 5557. Time of corporate existence. Sec. 557. Corporations organized for the purpose of ac(|uiring lands in lar;,'e tracts, paying off incumbrances thereon, improving aud subdividing them into homestead lots or parcels, and distributing tliem among the shareholders, and for the accumulation of a fund for such purposes, are known as homestead cor- porations, and must not have a corjiorate existence for a longer period than ten years. 5558. By-laws to specify time and amount of payment of installments, etc. Sec. 558. Such corporations must specify in their by-laws the times when the installments of the capital stock are payable, the amount thereof, and the tines, penalties, or forfeitures incurred in case of default. A printed copy of the articles of incorporation and by-laws must be furnished to any shareholder on demand. 5559. Advertisement and sale of delinquent and forfeited shares. Sec, 559. Whenever any shares of stock are declared forfeited by resolution of the board of directors, the directors may advertise the same for sale, giving the name of the subscriber and the number of shares, by notice of not less than three weeks, j^ublished at least once a week in a newspaper of general circula- tion in the city, town, or county w^here the jDrincipal place of business of such corporation is located. Such sale must be made at auction, under the direction of the secretary of the company. The corporation may be a bidder, and the shares must be disposed of to the highest bidder for cash. No defect, inform- ality, or irregularity in the proceedings respecting the sale invalidates it, if notice is given as herein provided. After the sale is made the secretary niust, on receipt of the purchase-money, transfer to the purchaser the shares sold, aud after deducting from the proceeds of such sale all installments then due, aud all expenses and charges of sale, must hold the residue subject to the order of the delinquent subscriber, 5560. May borrow and loan funds. Sec 5G0. Homestead corporations may borrow money for the purposes of the corporation, not exceeding at any one time one fourth of the aggregate amount of the shares or parts of shares actually paid in, and the income thereof; no greater rate of interest must be paid therefor than twelve per cent, per annum. For the purpose of completing the purchase of lands intended to be divided aud distributed, they may borrow on the security of their shares on the land thus purchased, or that owned by the corporation at the time of procuring the loan, any sum of money which, together with the interest contracted to become 661 55GC-55G5 CB^IL CODE. due tliereoB, will not oxceeil ninety per cent, of the unpaid amount subscribed by the shareholders; but no loan must be made to the corporation for a term extending? beyond that of its existence. 5561. Minor children, xcards, and married women may oxon stock. Sec. 5G1. Such shares of stock in homestead corporations as may be acquired by children, the cost of which, and the deposits and assessments on which are paid from the personal earnings of the children, or with gifts from persons other than their male parents, ma}' be taken and held for them by their parents or guardians. Married women may hold such shares as they acquire with their personal earnings, or those of their children, voluntarily bestowed therefor, or from property bequeathed or given to them by persons other than their hus- bands. 5562. Forfeiture for specidaiing in or oivning lands exceeding tivo hundred thou- sand dollars. Sec. 5G2. Homestead corporations must not jiurchase and sell, or otherwise acquire and dis2-)ose of real property, or any interest therein, or any personal property, for the sole purpose of speculation or profit. Nor must any such corijoration at any one time own or hold, in trust or otherwise, for its purposes, real i^roperty, or any interest therein, which in the aggregate exceeds in cash value the sum of two hundred thousand dollars. For any violation of the jiro- visious of this section, corporations forfeit their corporate rights and powers. On the apiolication of any citizen to a court of competent jurisdiction such for- feiture may be adjudged, and the judgment carries with it costs of the proceed- ings. 5563. II7i^/i corporation is terminated, and how. Sec 5G3. Except for the purpose of winding up and settling its affairs, every homestead corporation must terminate at the expiration of the time fixed for its existence in the articles of incorporation, or when dissolved as j^rovided in this part. No dividend of funds must be made on tei'mination of its corporate ex- istence until its debts and liabilities are paid; and upon the final settlement of the affairs of the corporation, or upon the termination of its corporate exist- ence, the directors, in such manner as they may determine, must divide its property among its shareholders in proportion to their resiDective interests, or, upon the application of a majority in interest of the stockholders, must sell and dispose of any or all of the real estate of the corporation upon such terms as may be most conducive to the interests of all the stockholders, and must convey the same to the purchaser, and distribute the proceeds among the shareholders, or may at any time, Avhen best for the interests of all the shareholders, cause the lands of the corporation to be subdivided into lots and distributed, by sale for premiums, at auction or otherwise, among the shareholders. 5564. Paymenl of premiums. Sec. 5G4. Such premiums on lots may be made payable at the time they are bid off, and, if not so paid on any lot of land, the directors may immediately offer tlie same for sale again. If made payable at a future day, and any share- hf^lder fails to pay his bid on the day the same is made due and payable, the directors may advertise and sell the shares of stock representing the lots of land on which the jiremiums remain uni>aid, in the manner j^rovided in the by- laws for the sale of shares on account of delinquent installments and premiums. 5585. Annual rqjort to he ]mljlished. Sec. 565. The actual financial condition of all homestead corporations must, by the directors thereof, be i)ublished annually in the [a] newspaper pul)lished at the pnncipal phue of business of the corporation, for four weeks, if i)ub- lishcd in a wtel^ly, and two weeks, if iiublished in a daily. The statement GG2 SAVINGS AND LOAN CORPORATIONS. 5505-5572 must be made up to the end of each vear, and must he verilicd liy tlic outli uf the president and secretary, sliowing the items of property and liabilities. 5566. r uhllcation in cerUdn cascf^. Sec. 5f)G. In any case in which a publication is rc(iuii((l, and no ncwspnt^er is published at the principal place of business, the i)ublicali(jn niay be made iu a paper published in an adjoining county. An Act sniiplemciitary to an act entitled An Act to authorize the formution (if eorixirationK to provide the numbers thereof with homesteads, or lots of laud suitaWe for hoiuehteuds, up- proved May 20, 18G1. Approveil March 23, 1874 ; 1873-4, 625. Extension of time for homestead eorporatlona. Section 1. Any corporation formed under the act to which this act is sup- plemental, whose period of existence is not stated in its articles of incoriiora- tion to be ten years, may continue its corporate existence for ten years from the date of filing its articles of incorporation, upon complying with the provisions of this act. Hoio existence continued. Sec. 2. Any such corporation existing on the first day of January, eighteen hundred and seventy-four, may, at any time before its period of existence, as stated in its articles of incorporation, shall expire, continue its exi.stence, as stated in section one of this act, by a majority vote of its board of trustees at any meeting of such board, or by a vote of a majority of the stockholders as the board of trustees may elect. A certificate of the action of the directors, signed by them and their secretary, when the election is made by their vote, or upon the written consent of the stockholders or members, or a certificate of the pro- ceedings of the meeting of tbe stockholders or members, when such election is made at any such meeting, signed by the chairman and secretary of the meet- ing and a majority of the directors, must be filed in the ofiice of the clerk of the count}^ where the original articles of incorporation are filed, and a certified copy thereof must be filed in the office of the secretaiy of state; and thereafter the corporation shall continue its existence under the provisions of this act, and shall possess all the rights and powers, and be subject to all the obligations, restrictions, and limitations prescribed by the act of Avhich this is supple- mentary. Sec. 3. This act shall take effect from and after its passage. TITLE X. Saiimo0 mh J?oau (ToriJorationo. 5571. May loan money— On lohat terms, hoiv, and to ^chom, and hoic long. Sec. 571. Corporations organized for the purpose of accumulating and h^an- ing the funds of their members, stockholders, and depositors, may loan and invest the funds thereof, receive deposits of money, loan, invest, tmd collect the same, with interest, and may repay depositors with or without interest. No such corporation must loan money, except on adequate security on real or personal property, and such loan must not be for a longer penod than six years. 5572. Capital stock, and rights and privileges thereof. Sec 572 AYhen savings and loan corporations have a capital stock specified in their articles of incorporation, certificates of the ownership of shares may be issued; and the rights and privileges to be accorded to, and the obligations 663 5572-5576 CIVIL CODE. to he imiDOsed npon, such capital stock, as distinct from those of depositors, must be fixed and defined, either iu the articles of incorporation or in the by-laws, 5573. No dividend except from surplus jorqfits. Sec. 573. The directors of savings and loan corporations may, at such times and in such manner as the by-laws prescribe, declare and pay dividends of so much of the profits of the corporation, and of the interest arising from the capital stock and deposits, as may be appropriated for that purpose under the by-laws or under their agreements with depositors. The directors must not contract any debt or liability against the corporation for any purpose whatever, excejit for dei^osits. The capital stock and the assets of the corporation are a security to depositors and stockholders, depositors having the priority of secu- rity over the stockholders, but the by-laws may provide that the same security shall extend to deposits made by stockholders. 5574. Property which may be oioned, and how di^^posed of. Sec. 574. Savings and loan corporations may purchase, hold and convey real and personal proj^erty, as follows: 1. The lot and building in which the business of the corporation is carried on, the cost of which must not exceed one hundred thousand dollars; except, on a vote of two thirds of the stockholders, the corporation may increase the sum to an amount not exceeding two hundred and fifty thousand dollars; 2. Such as may have been mortgaged, jDledged, or conveyed to it in trust, for its benefit in good faith, for money loaned in pursuance of the regular busi- ness of the coi-jDoration; 3. Such as may have been purchased at siiles under pledges, mortgages, or deeds of trust made for its benefit, for money so loaned, and such as may be conveyed to it by borrow^ers in satisfaction and discharge of loans made thereon; 4. Xo such corporation must purchase, hold, or convey real estate in any other case or for any other purpose; and all real estate described in subdivision three of this section, must be sold by the corporation within five years after the title thereto is vested in it by purchase or otherwise; 5. No cori^oration must purchase, own or sell personal j)roperty, excej^t such as may be requisite for its immediate accommodation for the convenient trans- action of its business, mortgages on real estate, bonds, securities or evidences of indebtedness, public or private, gold and silver bullion and United States mint certificates of ascertained value, and evidences of debt issued by the United States; G. No corporation must purchase, hold or convey bonds, securities or evi- dences of indebtedness, j)ublic or private, except bonds of the United States, of the State of California, and of the counties, cities, or cities and counties, or towns of the State of California, unless such corporation has a caj)ital stock or reserved fund paid in, of not less than $300,000. [Amendment, appjroved March 18, 1874; Amendments 1873-4, 273; took effect from passage ^^ 5575. Married women and minors may own stock in their own right. Sec 575. Married women and minors may, in their own right, make and draAv deposits and draw dividends, and give valid receipts therefor. 5576. 3Iay issue transferahle certificates of deposit. Sec 576. Savings and loan corporations may issue general certificates of de- posit, which are transferable, as in other cases, by indorsement and delivery; (a) The original Bection did not have the last clauae division after " fund " it had the words " or both capl- of the third subdivision, commencing witli tlio words tul stock uud reserved fund." " and Bucli as may be conveyed to it." lu the lust sub- 604 SAVINGS AND LOAN CORPORATIONS. 557G-5579 may issue, wlieii requested by the depositor, special certificates, ackuowledging the deposit by the person therein named of a specified sum of money, and ex- pressly providing on the face of such certificate that the sum so depoKited and therein named may be transferred only on the books of the corporation; pay- ment thereafter made by the corporation to the depositor named in such certifi- cate, or to his assignee named upon the books of the corporation, or, in case of death, to the legal representative of such person, of the sum for which such siDCcial certificate was issued, discharges the corporation from all further liability on account of the money so paid. 5577. To jjrovide reserve fund for the payment of losses. Sec. 577. Savings and loan corporations may jn-escribe by their by-laws the time and conditions on which repayment is to be made to depositors; but when- ever there is any call by depositors for repayment of a greater amount than the corporation may have disposable for that purpose, the directors or officers thereof must not make any new loans or investments of the funds of the depositors, or of the earnings thereof, until such excess of call has ceased. The directors of any such corporation having no cajntal stock must retain, on each dividend day, at least five per cent, of the net profits of the corporation, to constitute a reserv'e fund, which must be invested in the same manner as other funds of the corpor- ation, and must be used towards paying any losses which the corporation may sustain in pursuing its lawful business. The corporation may provide by its by- laws for the disposal of any excess in the reserve fund over one hundred thou- sand dollars, and the final disposal, upon the dissolution of the corporation, of the reserve fund, or of the remainder thereof, after payment of losses. 5578. Prohibition on director and officer, and tvliat vacates office. Sec. 578. No director or officer of any savings and loan corporation must, directly or indirectly, for himself or as the jiartner or agent of others, T)orrow any of the deposits or other funds of such corj^oi-ation, nor must he become an indorser or sui^ety for loans to others, nor in any manner be an obligor for moneys borrowed of or loaned by such corporation. The office of any director or officer who acts in contravention of the provisions of this section immediately there- upon becomes vacant. 5579. Definition of ph^-ase ''create debts." Sec. 579. Receiving deposits, issuing certificates of deposit, checks, and bills of exchange and the like, in the transaction of the business of savings and loan corporations, must not be construed to be the creation of debts within the mean- ing of the phrase " create debts," in section 309. An Act to authorize the husband or wife or next of kin of a cleceasetl person to collect and receive of any savings bank any deposit in such b^nk, when the same does not exceed the sum of three hl^ndred dollars. Approved February 18, 18T4; 1873-4, 132. Collect deposit. Section 1. The surviving husband or wife of any deceased person, or if no husband or wife be living, then the next of kin of such decedent may, without procuring letters of administration, collect of any savings bank any sum which said deceased may have left on a deposit in such bank at the time of his or her death; provided, said deposit shall not exceed the sum of thi'ee hundred dollai-s. Affidavit. Sec. 2. Any savings bank, upon receiving an affidavit stating that said depos- itor is dead, and that affiant is the surviving husband or wife, as the case may be, or stating that decedent left no husband or wife, and that affiant is the next of kin of said decedent and entitled to distribution, and that the whole amount that decedent left on deposit in any and all savings banks or bank of deposit 665 5579-5587 CIVIL CODE, in this state does not exceed the sum of three hundred dollars, niay imy to said aflSant any deposit of said decedent, if the same does not exceed the sum of three hundred dollars, and the receipt of such affiant shall be a sufficient acquittance therefor. Guilly. Sec. 3. Any person who shall make a false affidavit in regard to the matters specified in this act, shall he deemed guilty of perjury. Sec 4. This act shall take efi'ect from and after its passage. TITLE XI. 5. 5584. [Sec 584'"^ Avas repealed by act of April 3, 187G; Amendments 1875-6, 73; took effect immediately.] [The object of the section, -svhich was to change the principal place of busi- ness of a mining corporation, is accomi^lished by an act to the same effect applicable to all corporations. See ante, 5321.] 5585. Directors to file certificates of proceedings in offices of county clerics and secretary of state. Sec 585. When the publication provided for in the preceding section has been completed, the directors of the corporation must file in the offices of the clerks of the counties from and to which such change has been made, and in the office of the secretary of state, certified cop)ies of the written consent of the stockholders to such change, and of the notice of such change, and proof of publication; also a certificate that the proposed removal has taken place; and thereafter the pi-incipal place of business of the cor^^oration is at the place to which it is removed. 5586. Transfer agencies. Sec 58G. Any corporation organized in this state for the purpose of mining or canying on mining operations in or without this state, may establish and maintain agencies in other states of the United States, for the transfer and issu- ing of their stock; and a transfer or issue of the same at any such transfer agency, in accordance with the provisions of its by-laws, is valid and binding as fully and effectually for all purposes as if made upon the books of such corporation at its principal office within this state. The agencies must be gov- erned by the by-laws and the directors of the corporation. 5587. Stock issued at transfer agencies. Sec. 587. All stock of any such corporation, issued at a transfer agency, must be signed by the president and secretary of the corporation, and counter- signed at the time of its issue by the agent having charge of the transfer agency. No stock must be issiusd at a transfer agency unless the certificate of stock, in lieu of wliicli tlie same is issued, is at tlie time surrendered for cancellation. (a) lU'pealorl Bectlon: is obtained, notice of the intended removal iiiust be Sec. ftH4. Kv.ry mining rorporntion may clianno its puMislK-d for thirty dnys in s<>7ne newBpiipirpublii-hta priii.ipal i)l:i<-.' of buhinc-hH from on<- county or urpose of mininjo;' to the county jud'^e of the county where Knitl corporation has its in-iiu'i])al phice of husiuess, verified by the si;,'mrs, to Iho effect that tliey are severally the holders on the hooks of the company of the number of shares set opposite their signatures to the foregoing petition, tho county judge shall issue his notice to the shareholders of said company that a meeting of the shareholders will be hold, stating the time, not less than five nor more than ten days after the first pul)lication of such notice, and the phico of meeting within said county, and the object to be to take into consideration the removal of officers of said company; which notice, signed by the said county judge, shall be published daily in one or more daily newspapers i^ublished in said county for at least five days before the time for the meeting. Organization of meeting. Sec. 2. At the time and place appointed by said notice, those claiming to be shareholders who shall assemble, shall proceed to organize by the appointment of a chairman and secretary, and thereupon those claiming to be shareholders shall present proof thereof, and only those showing a right to vote shall take part in the further proceedings. If it appears that at the time appointed, or within one hour thereafter, shareholders of less than one half the shares are present, no further proceedings shall be had; but the meeting shall be ipso facto dissolved; provided, however, that by a vote of the holders of the majority of the capital stock of the corporations aforesaid, the board of trustees may be required to furnish to the meeting a written detailed statement and account of the affairs, business and property of the corporation; but if the holders of a majority of the shares are present they shall proceed to vote, the secretary calling the roll, and the members voting yea or no, as the case may be. The secretary shall enter the same upon his list, and when he has added up the list and stated the result, he shall sign the same and hand it to the chairman, who shall sign the same and declare the result. [Amendment, approved April 1, 1876; 1875-6,730; took effect from pasmge.^"' Ballot to supply vacancies. Sec. 3. If the result of the vote is that the holders of a majority of all the shares of the company are in favor of the removal of one or more of the officers of the company, the meeting shall then proceed to ballot for ofiicers to sui)i)ly the vacancies thus created. Tellers shall be appointed by the chairman, who shall collect the ballots and deliver them to the secretary, who shall count the same in open session, and having stated the result of the count in writing, shall sign the same and hand it to the chairman, wlio shall announce the result to tho meeting. Certificate of election. ■ Sec. 4. A report of the proceedings of the meeting shall be made in writing, signed by the chairman and secretary and verified by them, and delivered to the county judge, who shall thereupon issue to each person chosen a certificate of his election, and shall also issue an order requiring that all books, i^apers, nnd all property and effects be immediately delivered to the officers elect; and. tho petition and report, indorsed with the date and fact of the issuance of su.-li cer- tificate and order, shall be delivered to the county clerk, to be by him filed in (a) The original section, inRtead of " the majority," had the ^vord8 " two thirds." and instead of " a majority " the words ' ' more than two thirds." 667 5587 CIVIL CODE. his office, aud thereafter the persons thus elected officers shall be the duly elected officers aud hold office until the next regular aunual meeting, unless removed under the provisions hereof. Fees of county clerk. Sec. 5. For all services in these proceedings the county clerk shall receive ten dollars on the issuance of the notice and ten dollars on the issuance of the certificates. Sec. G. All acts or paiis of acts conflicting with this act are hereby repealed. Sec. 7. This act sLall take effect immediately. Au Act for the bettor protection of tlie Htockholders in corporations formed under the laws of the State of Culifurnia, for the pnrijose of carrying on aud conducting the business of mining. Approved March 30, 1874; 1873-4. 8G6. Books of mining corporal ioiis. Section 1. It shall be the duty of the secretary of every corporation fonned under the laws of the State of California, for the purpose of mining, to keep the books of such corporation, as prescribed by its by-laws, provided such by-laws are not inconsistent with the laws of this state. The books of such corporation shall be produced for examination and inspection during the hours of business, every day in the year, Sundays and legal holidaj^s excej^ted, upon the demand of any stockholder, holding and presenting a certificate of stock in such corpo- ration, either in his own name and properly indorsed; and the secretaiy of such corj^oration shall be reciuired upon the demand of any stockholder holding stock in such corporation, to the amount of five hundred dollars, par value, to have the books of the coi-poration written up at tlie end of each month, and shall make out a balance sheet showing the correct financial condition of the corporation, and on or before the tenth day. of January and July of each year, he shall make out a written statement, showing all the business and financial transactions of the corporation for the six months preceding, which statement shall also contain a full description of all joropert}^ of the corporation, and the character and extent of the same, and such statements, together with all jmpers and records of the corporation, shall be oj^en to examination and inspection upon any demand by such stockholder. All demands of stockholders, as speci- fied in this section, shall be made to the secretary, at the office of the corpora- tion, where its princii^al place of business is located. Examination of mines. Sec. 2. Any owner of stock, of the par value of $500, in anj' of the corpora- tions mentioned in section one of this act, shall at all hours of business or labor on or about the premises or property of such corporation, have the right to enter ui>ou such property and examine the same, either on the surface or under ground. And it is hereby made the duty of any and all officers, managers, agents, superintendents, or persons in charge, to allow any such stockholder to enter upon and examine any of the projierty of such corporation, at any time during the hours of business or labor. And the presentations of certificates of stock in the corijoratiou of the jmr value of five hundred dollars, to the officer or jierson in charge, shall be prima facie evidence of ownershii) and right to enter upon or into, and make examination of the property of the corporation. Fejialfy. Sec. 3. The violations of any of the provisions of sections one and two of this act, shall subject the trustees of the corporation to a fine of two hundred dol- lars and costs of suit, aud the expenses of the stockholders so refused, in trav- eling to and from the projierty, which may be recovered in any court of compe- tent jurisdiction, either in the county wliere the property is situated, or in the ' GC8 SOCIAL AND BENEVOLENT CORPORATIONS. 5587-o;-;98 county where the office and principal place of hiisiness of tlie cori)onitiou is situated, which said tine shall be imposed and collected for, iiud piii^^^^- nnected therewith. In case any SUCH cuij^^^. , „ mrchase, of more lands than herein or in the preceding section provided for, such surplus must be sold and conveyed by the corporation within five years after its acquisition. Such sale may be made without the order or decree of the district court, as hereinafter provided. 5597. Directors to make verified report annually. Sec. 597. The directors must annually make a full report of all property, real and personal, held in trust for their corporation by them, and of the condition thereof, to the members of the association for which they are acting. 5598. Corporations, by order of district court, may mortyaye or sell real estate. Sec. 598. Corporations of the character mentioned in section five hundred and ninety-three, may mortgage or sell real property held by them, upon ob- 669 5598-5G01 CITIL CODE. taining an order for that purpose from the district court hekl in the county in which the property is situated. Before making the order, proof must be made to the satisfaction of the court that notice of the application for leave to mort- gage or sell has been given by publication in such manner and for such time as the court or judge has directed, and that it is for the interest of the corporation that leave should be granted as prayed for. The application must be made by petition, and auy member of the corporation may oppose the granting of the order by affidavit or otherwise. {Ameiidmerd, approved March 30, 1874; Amend- ments 1873-4, 216; took effect July 1, 1874.^"> 5599. Wliat may be provided for in their hy-knes, etc. Sec. 599. Corporations organized for inxrjioses other than for profit may in their by-laws, ordinances, constitutions, or articles of incorporation, in addition to the provisions in Title I of this Part, provide for: 1. The qualitications of members, mode of election, and terms of admission to membership; 2. The fees of admission and dues to be paid to their treasury by members; 3. Tiie expulsion and suspension of members for misconduct or non-payment of dues; also, for restoration to membertship; 4. Contracting, securing, paying, and limiting the amount of their indebt- edness; 5. Other regulations, not repugnant to the constitution or laws of the state and consonant with the objects of the corporation, 5600. Members admitted after incorporation. Sec. goo. Members admitted after incorporation have all the rights and priv- ileges, and are subject to tbe same responsibilities, as members of the association prior thereto. 5601. No member to transfer membership , etc. Sec. GOl. No member, or his legal representative, must disjDose of or transfer any right or privilege conferred on him by reason of his membership of such corporation, or be deprived thereof, except as herein provided. An Act relating to mutual beneficial and relief associations. Approved Mwch 28, 1871; 1873-4, 745. Mutual beneficial and relief associations. Section 1. Associations may be formed for the purpose of paying to the nominee of any member, a sum upon the death of said member, not exceeding thi'ee dollars for each member of such association. No such association shall exceed in number one thousand persons. How formed. Sec 2. Such association shall be formed by filing a verified certificate in the la) Original sectioii: In the real estnto; 4. At any time before the day set for Sec. .Vj.. CorpoiationRorgnnized by members of ae- hearing the petition any person IntereKtediu the prop- Bociuti ns tuentioued in S' etiun .'lOrj may mortgai,'e or erty may present objeetii ins or answer to tlie petition, Bell the uecessary real estate lield by them, on lomply- raising "either question of law or fact, and the same lug with the following provisions: 1. The directors must bft tried by the court as other cases are tried; 5. must, by resolution, declare such disnohition of the If on the iiearlng at the trial it is found by the court real ebt .ti? necessary, or for the best intensts of the that the morl gage or sale of the property is unueces- corpor.itii.n. in the prosecution of the purposes of sary, or that the best interests of the corporation will the HBKorii.tion. setting li.rtli the grounds tlierefor; not be subserved or advanced tliereby, the order and 2. The directors must petition the distric t court decree must be denied; if it is found necessary, or «>f th'-- c(juiity in wliich the real eslate is situated, that the best Interests of tlie corporation will be sub- fi>r the ni'.rtgage or sale thereof, setting forth the reso- served or advanced thereby, the petition must be lutiiiu upiin wliich the petition is based; 3. The judge granted; C. Tlie court may, if considered necessary, of the cimrt. if it ajipear tljat it is a case in which such direct an appraisement of the property to be first made, order should be made, must ilircct publication of sum- and appi.int disinterested appraisers therefor, fix their TiioURtonll perilous interested in the pr-perty to ap- compensation and the time for them to report; and pear before i he i-ourt and show cause why such order direct the mak.ng and exe uti47 2. Such as may from time to time be necessary to sii])))ly tlie wants of its members, the cost of which, hehl unallotted to the members thcn-of ut anvune time, must not exceed the sum of one hundred thousand dollars; 3. Such as shall have been mortgaged, pledged, or conveyed to it in trust, to secure money loaned or to secure the purchase price thereof in pursuance of the regular business of the corporation. 5644. WJiaf the hy-laius may provide. Sec. 644. The by-laws of such corporations must specify the amount of the periodical subscriptions or payments to be made by each member, the time and manner in which such payments are to be made; the fines and forfeiture for default; the time and manner of election of directors and otiier officers, and their terms of office; the manner in which the real estate may be distributed, allotted, or sold to its members; the terms and conditions upon which loans may be made to its members and by them repaid to the corporation; the manner in which a person may become and cease to be a meinl)t'r; the conditions an which members may withdraw from the corporation, and the provisions f(jr tlie payment to withdrawing members of the sums of money due to them arising from subscrij)tions or payments, and the proi^ortion of the profits such with- drawing members may receive on withdrawal. 5645. Secretary must make annual slalemod, and publisli same. Sec. 645. The secretary of any such corporation must, once in each yo;ir din- ing the existence of the corporation, prepare a full and explicit statement of the financial affairs thereof, comprising a balance sheet, statements of receijjts and expenditures, profit and loss, and assets and liabilities, which must be audited and verified by two competent persons (not directors), elected by the general body of shareholders, and be countersigned by the president and secretary. A copy of such statement must be printed and circulated among the mend)ers, and appear immediately after the annual meeting of the corporation daily at least one week, or weekl}' at least four weeks, in one or more newspapers i)ub- lished at the place of the principal business of the corporation. 5646. [Sec. 646'=^* was repealed by act approved March 30, 1874; Amend- ments 1873-4, 217; took effect July 1, 1874. J 5647. Consolidalion and transfer of corporation business and property. Sec 647. Any two or more such corporations may unite and become incor- porated in one body, with or without any dissolution or division of the funds of such corporation, or either of them; or any such corporation may transfer its engagements, funds, and property to any other such corporation, upon such terms as may be agreed upon by two thirds of the members of each of such bodies present at general meetings of the members, convened for the purpose by notice, stating the object of the meeting, sent through the post-office to every member, and by general notice, appearing daily at least one week, or weekly at least two weeks, in some newspaper published at the phxco of the principal business of the corporation; but no such transfer can proju.lice any right of any creditor of either corporation, [Sec. 648'"' was repealed by act approved March 30, 1874; Amendments 1873-4, 217; took effect July 1, 1874.] la) Kepealed section- corporation is unable to satisfy biu-U tU'Ms nml li«biH- Sec. lilfl. Every present and past member of such cor- ties; nor mu»t any contributi,.u be r.Miuiro.1 fr..iu «i.y poratiou is personally liable for such proportion of all member or past menib>-r ex.ee,l.[i« the '|i'>;'unt iinpuld its debts and liabilities, incurred during his member- ou the shares lu respe.t ot which he is liable. ship.as the number ot shares subscribed by Uiiu bears {h) Uepealed section: ,„...,„ .. i... .^.„i..^i to the whole number ot subscribed shares; but no past Sicc. ..4^. Married wonien ""'l '" «»« «.> be »<» nitt^ member is liable for such contribution if more tu tn as members and mi.y take and ...Id sh-irc. '" ^''; ' ' " J" one year has elapsed since he ceased to be a member p. .rations and may execute .1 ■!<-•«■'««'•> ns rume tn before suit is commenced, nor for any debt or liability and -. ve a 1 uecess iry acqu tt inres an d sj an t^^ contracted after the time at which he ceased to be a fer their shares, in like mauuer us, other momberb. member, uor unless it appears to the court that the 675 5654-5659 CIVIL CODE. DIVISION SECOND. Paet I. PROPEETY IN GENERAL 5C54 II. REAL OR I^kBIOVABLE PROPERTY 5755 III. PERSONAL OR MOVABLE PROPERTY 594G IV. ACQUISITION OF PROPERTY GOOO I^J^RT I. PPtOPEPvTY IN GENERAL. Title I. Nature of Propeety 5654 II. OwNEi;snip 5669 ITT. General Definitions 6748 TITLE I. llahm of |Ji0|ici1ij. 5654. Properhj, what. Sec. 654. The ownership of a thing- is the right of one or more persons to possess and use it to the exclusion of others. In this code, the thing of which there may be ownership is called property. 5655. In wliaf j^roperty may exist. Sec. 655. There may be ownership of all inanimate things which are callable of appropriation or of manual delivery; of all domestic animals; of all obliga- tions; of such products of labor or skill as the composition of an author, the good will of a business, trade-marks and signs, and of rights created or granted h\ statute. 5656. Wild animals. Sec. 656. Animals wild by nature are the subjects of ownership while living, only when on the land of the person claiming them, or when tamed, or taken and held in possession, or disabled and immediately pursued. 5657. Heal and personal. Sec 657. Property is either: 1. Real or immovable; or, 2. Personal or movable. 5658. Ileal projoerty. Sec 658. Real or immovable property consists of; 1. Land; 2. That which is affixed to huid; 3. That which is incidental or appurtenant to land; 4. That which is inujiovuble by law. 5659. Laiid. Sec 659. Land is the solid material of the earth, whatever may be tlie ingre- dients of which it is composed, whether soil, rock, or other substance. 076 PROPEKTY IN GENERAL. 5CG0-5G72 5660. Fixtures. Sec. 6G0. A thing is deemed to be affixed to lund ^vlu'n it is ,ittu.-],ed f.; it l.v roots, as m the case of trees, vinos, or shrubs; or inibeddc.l i.i it hh in the oas', of walls; or permanently resting upon it, as in the case of buildin-s- or i)er manentlj attached to what is thus permanent, as by means of cement,' plaster nails, bolts, or screws. ' 5661. Fixtures attached to mines. Sec. 661. Sluice boxes, flumes, hose, pipes, railway bracks, cars, blacksmith shops, mills, and all other machinery or tools used in working or develoi.i)!- a mine, are to be deemed affixed to the mine. ° 5662. Appurtenances. Sec 662. A thing is deemed to be incidental or appurtenant to land when it IS by right used with the land for its benefit, as in the case of a way, or water- course, or of a passage for light, air, or heat from or across the land of another. 5663. Personal property. Sec. 663. Every kind of property that is not real is personal. TITLE II. Chapter I. Owners 5669 II. Modifications of Ownership 5678 III. Rights of Owners 57:}2 IV. Termination of Ownership 573 5871. Who may own property. Sec 671. Any person, whether citizen or alien, may take, hold, and dis]iose of property, real or personal, within this state. [Amendment, appyn;! M.irr), 30, 1874; Amendments 1873-4, 217; took effect July 1, 1874."" 5672. Aliens inheriting must claim xoithinfive years. Sec 672. If a non-resident alien takes by succession, he must ajipcar and claim the property within five years from the time of succession, or be barred. The property in such case is disposed of as provided in Title VIII, Part III, Code of Civil Procedure. [See post, 11,269. J (a) Original section: property dedicHted to the stnto, and of aU pn>porty of Sec. 670. The state is the owner of aU land below which there is no otherowuer. high water mark bordering upon tide water; of all (h) Original section: land below the water of a lake or stream which con- Sec. fiTl. Any pei-sou, whether citizen or alien, may stitutes an exterior boundary of the state; of aU prop- take and hold property, real or persnual. erty lawfully appropriated by it to its own use; of all 677 5678-5G87 CIVIL CODE. CHAPTER II. MODIFICATIONS OF OWNERSHIP. Abticle I. Intekksts in Peopkrty 5678 II. Conditions of Ownkkship 5707 III. EESTRAIN're UPON Aliknation 5715 IV. ACCCMCLATIONS , 5722 AETICLE I. INTERESTS IN PROPERTY. 5678. Ownnship, absohife or qualified. Sec. G78. The ownership of jDroperty is either: 1. Absolute; or, 2. Qualified. 5679. When absolute. Sec. 679. The ownership of property is absolute when a single person has the absolute dominion over it, and may use it or dispose of it according to his pleasure, subject only to general laws. 5680. When qualified. Sec. 680. The ownership of j)roj)erty is qualified: 1. "When it is shared with one or more persons; 2. "When the time of enjoyment is deferred or limited; 3. "When the use is restricted. 5681. Several ownejsJiip, what. Sec. 681. The ownership of property by a single joerson is designated as a sole or several ownership. 5682. Oionership of several 2')ersons. Sec. 682. The ownership of property by several persons is either: 1. Of joint interests; 2. Of partnership interests; 3. Of interests in common; 4. Of community interest of husband and wife. 5683. Joint interest, ichat. Sec. 683, 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. 5684. Partnership interest, vhat. Sec 684. A partnership interest is one owned by several persons, in pai-tner- ship, for partnership purposes. 5685. Interest in common, xoliat. Sec. 685. An interest in common is one owned by several persons, not in joint ownershiji or partnership. 5686. WJiat interests are in common. Sec. 686. Every interest created in favor of several jiersons in their own right is an interest in common, unless acquired by them in partnei'ship, for partner- ship purposes, or unle.ss declared in its creation to be a joint interest, as pro- vided in section 683, or unless acquired as community property. 5687. Community jjropertij. Sec 687, Communitj' property is property acquired by husband and wife, or either, during mamage, when not acquired as the separate property of either, 678 PEOPERTY IN GENERAL. 5088-5702 56B8. Intercf^fs as to time. Sec. G88. In respect to the time of enjoyment, an interest in proix'rty is t-itber: 1. Present or future; and, 2. Perpetual or limited. 5689. Fr-eseiU interest, ichat. Sec. G89. A j^resent interest entitles the owner to the innncdiute ]i(i',>--.s^inn of the j)roperty, 5690. Future interest, ii;hat. Sec. 690. A future interest entitles the owner to the possession of the j)rop- erty only at a future period. 5691. Perpetual interest, what. Sec. G91. A jDerpetual interest has a duration equal to that of the proj.crty. 5692. Limited interest, what. Sec. G92. A limited interest has a duration less than that of the property. 5693. Kinds of future, interests. Sec. G93. A future interest is either: 1. Vested; or, 2. Contingent. 5694. Vested interests. Sec. 694. A future interest is vested w'hen there is a person in beinpf who would have a right, defeasible or indefeasible, to the immediate possession of the property, upon the ceasing of the intermediate or precedent interest. 5695. Contingent inteirsts. Sec. 695. A future interest is contingent wliilst the person in whom, or the event upon which it is limited to take effect remains uncertain. 5696. Two or more future interests. Sec. 696. Two or more future interests may be createcLto take effect in the alternative, so that if the first in order fails to vest, the next in succession shall be substituted for it, and take effect accordingly. 5697. Certain future interests not to be void. Sec. 697. A future interest is not void merely because of the improbabihty of the contingency on which it is limited to take effect. 5698. Posthumous children. Sec. 698. When a future interest is limited to successors, heirs, i.ssue, or children, posthumous children are entitled to take in the same manner as if living at the death of their parent, 5699. Qualities of expectant estates. Sec. 699, Future interests pass by succession, will, and transfer, in the .same manner as present interests. 5700. Mere possibility not an interest. Sec. 700. A mere possibility, such as the expectancy of an heir apparent, is not to be deemed an interest of any kind. 5701. Interests in real property. Sec. 701. In respect to real or immovable property, the interests mentioned in this chapter are denominated estates, and are specially named and classified in Part II of this Division. 5702. Interests in personal pi-opeyiy. Sec. 702. The names and classification of interests in real property have only such application to interests in personal property as is in this division of the code expressly provided. 679 5703-5718 CIYIL CODE. 5703. What future interests are recognized. Sec. 703. No future interest in property is recognizecl by the law, except such as is deiined in this diN^siou of the code. AETICLE II. COXDITIOXS OF OWNERSHIP. 5707. Fixing the time of enjoyment. Sec. 707. The time when the enjoyment of property is to begin or end may be determined by computation, or be made to depend on events. In the latter case, the enjoyment is said to be upon condition. 5708. Conditions. Sec 70S. Conditions are precedent or subsequent. The former fix the be- ginning, the latter the ending, of the right. 5709. Certain conditions precedent void. Sec 709. If a condition precedent requires the performance of an act wrong of itself, the instinimeut containing it is so far void, and the right cannot exist. If it requires the performance of an act not wrong of itself, but otherwise un- lawful, the instrument takes effect and the condition is void. 5710. Conditio7is restraining marriage are void. Sec 710. Conditions imposing restraints upon marriage, except upon the marriage of a minor, are void; but this does not affect limitations where the intent was not to forbid marriage, but only to give the use until mai'riage. [Amendment, approved March ^Q , 1874; Amendments 1^1 ^—k, 21^; took effect July 1, 1874.^*> 5711. Conditions restraining alienation void. Sec 711. Conditiqjis restraining alienation, when repugnant to the interest created, are void. AETICLE III. RESTRAINTS UPON ALIENATION. 5715. IIow long it may be suspended. Sec 715. The absolute power of alienation cannot be suspended, by any lim- itation or condition whatever, for a longer period than during the continuance of the lives of persons in being at the creation of tlie limitation or condition, except in the single case mentioned in section 772. 5716. Future interests void, which suspend power of alienation. Sec. 71G. Every future interest is void in its creation which, by any possibil- ity, may suspend the absolute power of alienation for a longer period than is prescribed in this chapter. Such power of alienation is suspended when there are no persons in being by whom an absolute interest in possession can be con- veyed. 5717. Lipases of agricultural land, for over ten years, void. Sec 717. No lease or grant of agricultural land for a longer period than ten years, in which shall be reserved any rent or service of any kind, shall be valid. 5718. Leases of city lots, for over twenty years, void. Sec 718. No lease or grant of any town or city lot, for a longer period than twenty years, in which shall be reserved any rent or service of any kind, shall be valid. (a) The original section did not have the last clause commencing with the words "but this does not affect limitatiouii." C80 PKOPEKTY IN GENERAL. 5722-5739 ARTICLE IV. ACCUMULATIONS. 5722. Dispositions of income. Sec. 722. Dispositions of the income of property to accrue and to "be received at any time subsequent to the execution of the instrument creating such dispo- sition, are governed by the rules prescribed in this title in relation to future interests. 5723. Accumulations, ivhen void. Sec 723. All directions for the accumulation of the income of property, ex- cept such as are allowed by this title, are void. 5724. Accumulation of income. Sec 724. An accumulation of the income of property, for the benefit of one or more persons, may be directed by any will or transfer in writing sufficient to pass the property out of which the fund is to arise, as follows : 1. If such accumulation is directed to commence on the creation of the inter- est out of which the income is to arise, it must be made for the benefit of one or more minors then in being, and terminate at the expiration of their minority; or, 2. If such accumulation is directed to commence at any time subsequent to the creation of the interest out of which the income is to arise, it must com- mence within the time in this title permitted for the vesting of future interests, and during the minority of the beneficiaries, and terminate at the expiration of such minority. 5725. Other directions, when void in part. Sec 725. If in either of the cases mentioned in the last section the direction for an acciamulation is for a longer term than during the minority of the bene- ficiaries, the direction only, whether separable or not from other provisions of the instrument, is void as respects the time beyond such minority. 5726. Application of income to support, etc. , of minor. Sec 726. "When a minor for whose benefit an accumulation has been directed is destitute of other sufficient means of support and education, the proper court, upon application, may direct a suitable sum to be applied thereto out of the fund. CHAPTEE III. EIGHTS OF OWNEKS. 5732. Increase of property. Sec 732. The owner of a thing owns also all its products and accessions. 5733, In certain cases, who entitled to income of property. Sec 733. When, in consequence of a valid limitation of a future interest, there is a suspension of the power of alienation or of the ownership during the continuation of which the income is undisj)osed of, and no valid du-ection for its accumulation is given, such income belongs to the persons j^resumx^tively entitled to the next eventual interest. CHAPTEE IV. TERMINATION OF OWNERSHIP. 5739. Future interests, when defeated. Sec. 739. A future interest, depending on the contingency of the death of any person without successors, heirs, issue, or children, is defeated by the birth of a posthumous child of such person, capable of taking by succession. 681 5740-5749 CIYIL CODE. 5740. Same. Sec. 740. A future interest may be defeated in any manner or by any act or means which the party creating such interest provided for or authorized in the creation thereof; nor is a future interest, thus liable to be defeated, to be on that ground adjudged void in its creation. 5741. Future iiilei-esls, u-hen not defeated. Sec. 741. No future interest can be defeated or ban-ed by any alienation or other act of the owner of the intermediate or precedent interest, nor by any destruction of such precedent interest by forfeiture, surrender, merger, or otherwise, except as jirovided by the next section, or where a forfeitui-e is im- jjosed by statute as a penalty for the violation thereof. 5742. Same. Sec. 742. No future interest, valid in its creation, is defeated by the deter- mination of the precedent interest before the hapj)ening of the contingency on which the future interest is limited to take effect; but should such contingency afterwards happen, the future interest takes effect in the same manner and to the same extent as if the precedent interest had continued to the same period. TITLE III. 5748. Income, what. Sec, 748. The income of property, as the term is used in this j^art of the code, includes the rents and profits of real proiDcrty, the interest of money, dividends upon stock, and other produce of personal property. 5749. Time of creation, what. Sec. 749. The delivery of the gi'ant, where a limitation, condition, or future interest is created by grant, and the death of the testator, where it is created by will, is to be deemed the time of the creation of the limitation, condition, or interest, within the meaning of this j)art of the code. 682 REAL PROrERTY. 5755-5763 I^A-HT II. EEAL OR IMMOVABLE PROPERTY. Title I. Genekal Provisions 5755 II. Estates in Real Property 57G1 III. Rights and Obligations of Owners 5118 •IV. Uses and Trusts 5847 V. Powers 5878 TITLE I. (Sencral IJroubJon^j. 5755. Law governing real property. Sec. 755. Real property within this state is governed by the law of this state, except where the title is in the United States. [Amendment, approved 3Iarch 30, 1874; Amendments 1873-4, 218; took effect July 1, 1874.'^' TITLE II. ^0tatc$ in JJcal |Jro|if rtij. Chapter I. Estates in General 5761 II. Termination of Estates 5789 III. Servitudes 5801 CHAPTER I. estates in general. 5761. Enumeration of estates. Sec. 761. Estates in real property, in respect to the duration of their enjoy- ment, are either: 1. Estates of inheritance or perpetual estates; 2. Estates for life; 3. Estates for years; or, 4. Estates at will. 5762. Estates in fee. Sec. 762. Every estate of inheritance is a fee, and every such estate, when not defeasible or conditional, is a fee simjile, or an absolute fee. [Ameiidment, ap- proved March 30, 1874; Amendments 1873-4, 218; took effect July 1, 1874.^'^> 5763. Conditional fees and estates tail abolished. Sec. 763. Estates tail are abolished, and every estate which would be at com- mon law adjudged to be a fee tail is a fee simple; and if no valid remainder is limited thereon, is a fee simple absolute. (a) The orif^inal Bection did not have the last clause ing the abolition of tenures, continues to be called a commencing with the words " escept where the title." fee simple, or fee; and every Bi:ch estate, when not de- (6) Original section: feasible or conditional, is called a fee simple absolute. Sec. 762. Every estate of inheritance, notwithstand- or an absolute fee. 683 5764:-5773 CB'IL CODE. 5764. Certain remainders valid. Sec. 704:. Where a remainder iu fee is limited uj^on any estate, wliich would by the common law he adjudged a fee tail, such remainder is valid as a con- tingent limitation ujion a fee, and vests in possession on the death of the first taker, without issue living at the time of his death. 5765. Freeholds — Chattels real — Chattel interests. Sec. 7G5. Estates of inheritance and for life are called estates of freehold; estates for years are chattels real; and estates at will are chattel interests, but are not liable as such to sale on execution, 5766. Estate for life of a third 2)srson, a fi'eehold. Sec 7GG. An estate during the life of a third person, whether limited to lieii'S or otherwise, is a freehold. [Amendment, approved March 30, 1874; Amendments 1873-4, 218; took effect July 1, 1874.'"^ 5767. Fi(fu7-e estates, ichat. Sec. 7(J7. A future estate may be limited by the act of the party to commence in i^ossession at a future day, either without the intervention of a precedent estate, or on the termination, by lapse of time or otherwise, of a precedent estate created at the same time. 5763. Reversions. Sec 708. A reversion is the residue of an estate left by operation of law in the grantor or his successors, or in the successors of a testator, commencing in possession on the determination of a particular estate granted or devised. 5769. Remainders. Sec 709. 'S\'hen a future estate, other than a reversion, is dej)endent on a precedent estate, it may be called a remainder, and may be created and trans- fen-ed by that name. 5770. Limitations of chattels real. Sec. 770. The absolute ownership of a term of years cannot be suspended for a longer period than the absolute power of alienation can be suspended in respect to a fee. [Amendment, approved March 30, 1874; Amendments 1873-4, 218; took effect July 1, 1874.*"' 5771. Suspension by trust. Sec 771. The suspension of all pow'er to alienate the subject of a trust, other than a j)ower to exchange it for other j)roperty to be held upon the same trust, or to sell it and reinvest the proceeds to be held upon the same trust, is a sus- pension of the jjower of alienation, within the meaning of section 715. 5772. Contingent remainder in fee. Sec 772. A contingent remainder in fee may be created on a prior remainder m fee, to take effect in the event that the persons to whom the first remainder IS limited die under the age of twenty-one years, or upon an^^ other contingency by Avhich the estate of such persons may be determined before they attain majority. 5773. Remainders, future and contingent estates, how created. Sec 773. Subject to the rules of this title, and of Part I of this Division, a freehold estate, as well as a chattel real, may be created to commence at a future day; an estate for life may be created in a term of years, and a remainder lim- ited thereon; a remainder of a freehold or chattel real, either contingent or (a) 0ri(,'iD8l BC'ctlon: (h) The original section had the following prefatory Bkc. 70(.. An ihtitte during the life of a third prrson, -wiiraK: "The iJroviHions of Title II of Pint I of this whether liiuited to heirh or otherwise, is ii freehold DiviBion, relative to future entuteB, apply to liniitiitions only during tlie life of the grantee or deviBte. After of chuttelB real, ae well as to freehold eatates, so that." DIB death it in a chattel real. C84 EEAL PROPERTY. 5773-5789 vested, may be created, exi:)ectant on the determination of a term of years; and a fee may be limited on a fee, upon a contingency, which, if it should occur, must hapi:)en within the period prescribed in this title. 5774. Limitation of successive estates for life. Sec. 774. Successive estates for life cannot be limited, except to persons in being at the creation thereof, and all life estates subsequent to those of persons in being are void; and upon the death of those persons the remainder, if valid in its creation, takes effect in the same manner as if no other life estate had been created. [Amendment, approved March 30, 1874; Amendments 1873-4, 219; took effect July 1, 1874.^"' 5775. Remainder upon estates for life or term of years. Sec. 775. No remainder can be created upon successive estates for life, pro- vided for in the preceding section, unless such remainder is in fee; nor can a remainder be created upon such estate in a term for years, tinless it is for the whole residue of such term. [Amendme7il, approved 31arch 30, 1874; Amend- ments 1873-4, 219; took effect July 1, 1874.^'" 5776. Contingent remainder on a term of years. Sec. 776. A contingent remainder cannot be created on a term of years, unless the nature of the contingency on which it is limited is such that the remainder must vest in interest during the continuance or at the termination of lives in being at the creation of such remainder. 5777. Remainder of estates for life. Sec. 777. No estate for life can be limited as a remainder on a term of years, except to a person in being at the creation of such estate. 5778. Remainder upon a contingency. Sec. 778. A remainder may be limited on a contingency which, in case it should happen, will operate to abridge or determine the precedent estate; and every such remainder is to be deemed a conditional limitation. 5779. Heirs of a tenant for life, ivhen to fake as purchasers. Sec 779. When a remainder is limited to the heirs, or heirs of the body, of a person to whom a life estate in the same property is given, the persons who, ou the termination of the life estate, are the successors or heirs of the bod}- of the owner for life, are entitled to take by virtue of the remainder so limited to them, and not as mere successors of the owner for hfe. 5780. Construction of certain remainders. Sec 780. When a remainder on an estate for life, or for years, is not limited on a contingency defeating or avoiding such precedent estate, it is to be deemed intended to take effect only on the death of the first taker, or the expiration, by lapse of time, of such term of years. 5781. Effect of power of appointment. Sec 781. A general or special power of appointment does not prevent the vesting of a future estate limited to take effect in case such power is not executed. CHAPTER II. TERMINATION OF ESTATES. 5789. Tenancy at will may he terminated by notice. Sec 789. A tenancy or other estate at will, however created, may be termi- nated by the landlord's giving notice in writing to the tenant, in the manner (a) The original section did not have the words "and (6) The original section did not have the words "pro. all life estates subsequent to those of persons in being vided for in the jirecediug sectiou." are void." 685 5789-5802 CIVIL CODE. IDrescribed h\ section 11G2 of the Code of Civil Procedure, to remove from the premises within a period of not less than one month, to be specified in the notice. 5790. £[ft:ct of notice. Sec. 790. After such notice has been served, and the period specified by such notice has expired, but not before, the landlord may re-enter, or proceed accord- ing to law to recover possession. 5791. la'-enlrij, ichen and how to he made. Sec. 791. Whenever the right of re-entry is given to a grantor or lessor in any gi-ant or lease, or otherwise, such re-entry may be made at any time after the ri"ht has accrued, upon three days' notice, as provided in sections llGl and 11G2, Code of Civil Procedure. 5792. Summary proceedings in certain cases provided for . Sec. 792. Summary proceedings for obtaining possession of real property forcibly entered, or forcibly and unlawfully detained, are provided for in sec- tions 1159 to 1175, both inclusive, of the Code of Civil Procedure. 5793. Xotice not nrcessai-y be/ore action. Sec. 793. An action for the possession of real property leased or granted, with a right of re-entr}^, may be maintained at any time, in the district court, after the right to re-enter has accrued, without the notice prescribed in section 791. CHAPTER III. SERVITUDES. 5801. Servitudes attached to land. Sec. 801. The following land burdens, or servitudes upon land, may be at- tached to other land as incidents or appurtenances, and are then called ease- ments: 1. The right of i^asture; 2. TLie right of fishing; 3. The right of taking game; 4. The right of wa}'; 5. The right of taking Nvater, wood, minerals, and other things; G. The right of transacting business upon land; 7. The right of conducting lawful sports upon land; 8. The right of receiving air, light, or heat from or over, or discharging the Bame upon or over land; 9. Tlie right of receiving water from or discharging the same upon land; 10. The right of flooding land; 11. The right of having water flow without diminution or disturbance of any kind; 12. The riglit of using a wall as a party wall; 13. Tlie right of receiving more than natural support from adjacent land or things affi.\ed thereto; 14. The right of having the whole of a division fence maintained by a coter- minous owner; 15. Tlie right of having public conveyances stopped, or of stopping the same on land; 10. Tlie right of a seat in church; 17. Tlie right of burial. 5802. Servitudes not attached to land. Sec. 802. The following land burdens, or servitudes upon laud, may be granted and lield, though not attached to land: G8G REAL PROPERTY. 5802-5811 1. The right to pasture, and of fishing and taking game; 2. The right of a seat in church; 3. The right of burial; 4. The right of taking rents and tolls; 5. The right of Avay; C. The right of taking water, wood, minerals, or other things. [Amendmeitt, approved March 30, 1874; Amendments 1873-4, 219; took effect July 1, 1874.<'" 5803. Designation of estates. Sec. 803. The land to which an easement is attached is called the dominant tenement; the land upon which a burden or servitude is laid is called the ser- vient tenement. 5804. By ivhom grantdble. Sec. 804. A servitude can be created only by one who has a vested estate in the servient tenement. 5805. By whom held. Sec. 805. A servitude thereon cannot be held by the owner of the servient tenement. 5808. Extent of servitudes. Sec. 80G. The extent of a ser^dtude is determined by the terms of the grant, or the nature of the enjoyment by which it was acquired. 5807. Apportioning easements. Sec 807. In case of partition of the dominant tenement the burden must be apportioned according to the division of the dominant tenement, but not in such a way as to increase the burden upon the servient tenement. 5808. Rights of oivner of future estate. Sec. 808. The owner of a future estate in a dominant tenement may use ease- ments attached thereto for the purpose of viewing waste, demanding rent, or removing an obstruction to the enjoyment of such easements, although such tenement is occupied by a tenant. 5809. Actions by owner and occupant of dominant tenement. Sec. 809. The owner of any estate in a dominant tenement, or the occupant of such tenement, may maintain an action for the enforcement of an easement attached thereto. 5810. Actions by owner of servient tenement. Sec. 810. The owner in fee of a servient tenement may maintain an action for the possession of the land, against any one unlawfully possessed thereof, though a servitude exists thereon in favor of the public. 5811. How extinguished. Sec 811. A servitude is extinguished: 1. B3- the vesting of the right to the servitude and the right to the servient tenement in the same person; 2. By the destruction of the servient tenement; 3. B}^ the performance of any act upon either tenement, by the owner of the servitude, or with his assent, which is incompatible with its nature or exer- cise; or, 4. When the servitude was acquired by enjoyment, by disuse thereof by the owner of the servitude for the period prescribed for acquiring title by enjoy- ment. (a) The original section did not have the words, " to pasture, and " in the first subdivision, and did not have the sixth subdivision, 687 5818-5823 CR'IL CODE. TITLE III. Jliijljt^ m\h (!)bii9atioi!0 of (Dinners. Chapter I. Rights of Owners 5818 II. OBLia.vrioNS of Owners i 5840 CHAPTEE I. EIGHTS OF OWNERS. Article I. Incidents of Owneeship. 5818 II. BuCN-DAKIES , 5829 ARTICLE I. INCIDENTS OF OWNERSHIP. 5818. Fiiqhls of tenant for life. Sec. 818. The owner of a life estate may use the land in the same manner as the owner of a fee simple, except that he must do no act to the injury of the inheritance. 5819. Bifilds of tenant for years, etc. Sec. 819, A tenant for years or at will, unless he is a wrongdoer by holding over, may occupy the buildings, take the annual products of the soil, work mines and quarries open at the commencement of his tenancy. 5820. Same. Sec 820. A tenant for years or at will has no other rights to the property than siich as are given to him by the agreement or instnimeut by which his tenancy is acquired, or by the last section. 5821. Pdyhis of grantees of rents and reversions. Sec 821. A person to whom any real property is transferred or devised, upon which rent has been reserved, or to whom any such rent is transferred, is en- titled to the same remedies for recovery of rent, for non-performance of any of the terms of the lease, or for any waste or cause of forfeiture, as his grantor or devisor might have had. 5822. Liability of assignee of lessee. Sec. 822, AVhatever remedies the lessor of any real property [has] against his immediate lessee for the brea/;h of any agreement in the lease, or for recoveiy of the possession, he has against the assignees of the lessee, for any cause of action •accruing while they are such assignees, except where the assignment is made by way of security for a loan, and is not accomi^anied by possession of the premises. [Amendment, approved Mardi 30, 1874; Amendments 1873-4, 219; took effect July 1, 1874,* "> 5823. Rights of lessees and their assignees, etc. Sec, 823, "Whatever remedies the lessee of any real property may have against his immediate lessor, for the breach of any agreement in the lease, he may have against the assigns of the lessor, and the assigns of the lessee may have againt the lessor and his assigns, except upon covenants against incum- brances or relating to the title or possession of the premises. (a) TL<: '■ri^'iiial htction did not liave the lufct clause commencing with the words " for any cause of action." 688 KEAL PEOPERTY. 5824-5832 5824. Remechj on leases for life. Sec. 824. Pieut due upon a lease for life may be recovered in the same manner as upon a lease for years. 5825. Bent dependent on life. Sec. 825. Rent dependent on the life of a person may be recovered after as well as before his death. 5826. Remedy of reversioners , etc. Sec. 826. A person having- an estate in fee, in remainder or reversion, may maintain an action for any injury done to the inheritance, notwithstanding an intervening estate for life or years, and although, after its commission, his estate is transferred, and he has no interest in the property at the commencement of the action. 5827. Terms of lease may he changed by notice. Sec 827. In all leases of lands or tenements, or of any interest therein, from month to month, the landlord may, upon giving notice in writing at least fifteen days before the expiration of the month, change the terms of the lease, to take effect at the expu-ation of the month. The notice, when served upon the tenant, shall of itself operate and be effectual to create and establish, as a part of the lease, the terms, rent, and conditions specified in the notice, if the tenant shall continue to hold the premises after the expiration of the month. [New section, approved Ilarch 30, 1874; Amendments 1873-4, 220; took effect July 1, 1874. ARTICLE II. boundaries. 5829. Rights of owner. Sec. 829, The owner of the land in fee has the right to the surface and to everything permanently situated beneath or above it. 5830. Boundaries by ivater. Sec 830. Except where the grant under Avhich land is held indicates a different intent, the owner of the upland, Avhen it borders on tide water, takes to ordi- nary high water mark; when it borders ujDon a navigable lake or stream, where there is no tide, the owner takes to the edge of the lake or stream, at low water mark; when it borders ujDon any other water, the owner takes to the middle of the lake or stream. [Aynendment, approved March 30, 1874; Amendments 1873-4, 220; took eff'ect July 1, 1874,^^' 5831. Boundaries by ways. Sec 831. An owner of land bounded by a road or street is presumed to own to the centre of the way, but the contrary may be shown. 5832. Lateral and subjacent support, right of owner to excavate. Sec 832. Each coterminous owner is entitled to the lateral and subjacent support which his land receives from the adjoining land, subject to the right of the owner of the adjoining land to make proper and usual excavations on the same for purjDOses of construction, on using ordinary care and skill, and taking reasonable precautions to sustain the land of the other, and giving previous reasonable notice to the other of his intention to make such excavations. [Amendment, approved March 30, 1874; Amendments 1873-4, 221; took effect July 1, 1874.^^' (a) Original section: water, the owner takes to the middle of the lake or Sec. 830. When land borders upon tide water, or stream, upon water which constitutes an exterior bouudai-y of (a) Original section: the state, the owner of the upland takes to high water Sec. 832. Each coterminous owner is entitled to the mark; when it borders upon a navigable lake where lateral and subjacent support which his laud by nature there is no tide, the owner takes to the edge of the lake receives from the laud of the other, at low water naark; when it borders upon any other 44 689 5833-5852 CIVIL CODE. 5833. Trees tchose trunks are iL-liolhj on land of one. Sec. 833. Trees whose trunks stand wholly upon the land of one owner belong exclusively to him, although their roots grow into the laud of another. 5834. Line trees. Sec. 83-4. Trees whose trunks stand partly on the land of two or more coter- minous owners, belong to them in common. CHAPTEE II. OBLIGATIONS OF OWNERS. 5840. Duties of tenant for life. Sec. 840. The owner of a life estate must keep the buildings and fences in rejmir from ordinary waste, and must pay the taxes and other annual charges, and a just proportion of extraordinary assessments benefiting the whole inher- itance. 5841. Monuments and fences. Sec. 8-41. Coterminous owners are mutually bound equally to maintain: 1. The boundaries and monuments between them; 2. The fences between them, unless one of them chooses to let his land lie without fencing; in which case, if he afterwards incloses it, he must refund to the other a just projjortion of the value, at that time, of any division fence made b}' the latter. [In a number of the counties there are special laws concerning division and partition fences; and in so far as they are in force they modify the above pro- visions. See post, 15,308 to 15,335. J TITLE lY. 5847. What uses and trusts may exist. Sec. 84:7. Uses and trusts in relation to real j^roperty are those only w^hich are specified in this title. [Sees. 848, 849, 850 and 851^"' were repealed by act approved March 30, 1874; 1874; Amendments 1873-4, 221; took effect July 1, 1874.] 5852. Trust to be in writing. Six. 852. No trust in relation to real property is valid unless created or declared: 1, By a written instrument, subscribed by the trustee, or by his agent thereto authorized by writing; 2, By the instrument under which the trustee claims the estate affected; or, 3, By operation of law. (a) llepealcd KfctionK: Rkc. 850. Everj' (IJRposition of real proporty. whether 8kc. 8H. Ever}' I'"'™"" who, by virtue of any transfer by tninsl'er or will, must bo m.adc directly to the per- or (ieviw-., in entitled to tbe actiiiil poHKCKsion of real Bon iu whom tlie right to the iiosFcKsion mid prolitB is propr-rty, and the n-ciipt of the rintK and profits intended to*be vestinl, and not to any other, to the use then-ot, IK to be deewjeil to havi- a legal ehtiiti- therein, of or iu trust for such person; and if made to any per- of the Haine quality anrl duration, and subject to the son, to the nee of or in trust for another, no cstnte or name conditiouK. as his beneficial interest. interest vests in the trustee; but he must execute a re- Skc. 810. The last section does not divest the estate lease of the projjerty to the beneficiary on demand, the of any trustee in a trust, where the title of such trustee latter jjaying the expense thereof. is not mi rely nominal, but is (dni]i-1. The preceding se(ti I Sec 868"" was repealed by act approved March 30, 1874; Amendments 1873-4, 223; took effect July 1, 1874.] 536*9. Express trust, lolien deemed absolute grant in favor of purchasers from trustees. Sec 869. Where an express trust is created in relation to real property, but is not contained or declared in the grant to the trustee, or in an instrument signed by him, and recorded in the same office with the grant to the trustee, (n) Reiieiilfd Bcctlon: power In trust, the ronl property to wliich the truBt Skc. H((i. ANhi-re an expreKS tnist in relation to real reiiitcB reiiuiiiiR in. or pasgiis by succcBSiou to, the per- propirty m estate in the trust as a power in trust. trustees; but the tnist. if direrting or authorizing the (c) Original Beetion: perfornianie oJ any a. t which may be lawfully per- Skc. «(i7. The benehciary of a trust for the receipt of forined undi-r a power, is valid as a power in trust, the rents and iirofits of real property cannot transfer subject to the jirovisions in relation to such powerB or in anv manner dispose of his interest in Buch truBt. contained in TiUe V of this Part. (d) Kepeoled section: (fc) Kepealed BCctions: Sec. «0K. The beneficiary of a trust for the payment SEf. «tll. Nothing in this title prevents the creation of an annuity uni of the rents and i>rofits of real prop- of a power in trust for any of the purposes for which erty, or of a sum in groBB, can dispose of his interest an express trust may be created. in such trust. Sec. 862. In every case where a trust is valid as a 692 PERSONAL PROPERTY. 5869-594G such grant must be deemed absolute in favor of purchasers from such trustee without notice, and for a valuable consideration. [Amendment, approved March 30, 1874; Amendments 1873-4, 223; took effect July 1, 1874.^"' 5870. Certain sales, etc., by trustees, void. Sec. 870. Where a trust in relation to real property is expressed in the insti-u- ment creating- the estate every transfer or other act of the trustees, in contra- vention of the trust, is absolutely void. 5871. When estate of trustee to cease. Sec 871. When the purpose for which an express trust was created ceases, ihe estate of the trustee also ceases. [TITLE y.] [iloiiicr0.] [This entire title, on the subject of " Powers," embracing sections from 878 to 940, inclusive, was repealed by act approved March 30, 1874; Amendments 1873-4, 223; took effect July 1, 1874. On account of the unimportance, under the circumstances, of these repealed sections, as well as on account of their length, they are omitted from the foot-notes; and the inquirer, who may desire to consult them, is referred to the Civil Code as jDublished in 1872.] I>^IIT III. PERSONAL OR MOVABLE PROPERTY. Title I. Personal Property in General 5946 11. Particular Kinds of Personal Property 5953 TITLE I. |)cr$0nal Jliopcrtij in (BcncraL 5946. By tchat law governed. Sec. 946. If there is no law to the contrary in the place where personal property is situated, it is deemed to follow the person of its owner, and is governed by the law of his domicile. [Re-enactment, approved March 9, 1876; Amendments 1875-6, 78; took effect sixtieth day after passage. [The foregoing section may have been repealed by act ajiproved March 80, 1874; Amendments 1873-4, 223. The section containing the repeal, if there was any repeal, referred to the pre\dous title, but apparently treated this section as a part of such title. The repealing section was as follows: " Sec 123. Title V, of Part III, of Division II, on Powers of the Civil Code, embracing sections of said code from section 878 to 946, inclusive, is repealed." (a) Original Bection: absolute in favor of the PubBoquent creditors of the Sec. 869. Where an express trust is created in rela- trustees, not having notice of the trust, and in favor of tion to real property, but is not contained or declared purchasers from such trustees without notice, and for in the grant to the trustee, such grant must be deemed a valuable consideration. 693 5946-59C1 CIVIL CODE. It ^Yill be observed that section 940 was not embraced in the title referred to; that it was not upon the subject of Powers, and that the repeal, if any, was effected by the use of the word " inclusive." However this may have been, the section was re-enacted by act approved March 9, 1870; Amendments 1875-6, 78; took effect sixtieth day after passage.] [Sec 947 ^"^ was repealed by act approved March 30, 1874; Amendments 1873-4, 223; took effect July 1, 1874.J TITLE II. Particular BiuD0 of Pergonal IJroiicrtij. Chapter I. Things in Action 5953 II. Shipping 5960 III. Products of the Mind 5980 IV. Other kinds of Personal Property 5991 CHAPTEK I. THINGS IN ACTION. 5953. Thing in action defined. Sec. 953. A thing in action is a right to recover money or other personal property by a judicial proceeding. [Amendment, approved 31arch 30, 1874 ; Amendments 1873-4, 223; took effect July 1, 1874.'''> 5954. Transfer and survivorship. Sec. 954. A thing in action, arising out of the violation of a right of prop- erty, or out of an obligation, may be transferred by the owner. Upon the death of the owner it passes to his personal representatives, except where, in the cases i:)rovided in the Code of Civil Procedure, it passes to his devisees or successor in office. CHAPTEK II. SHIPPING. Akticle I. Genkbal Pbotisions 5960 II. RcLEs OF Navigation 5970 AKTICLE I. GENERAL PROVISIONS. 5960. Ship, shif>ping terms defined. Skc. 900. The term ship, or shipping, when used in this code, includes steam- boats, sailing vessels, canal boats, barges, and every structure adapted to be navigated from place to place for the transi:)ortation of merchandise or persons. [Amendment, approved March 30, 1874; Amendments 1873-4, 224; took effect Jul'/ 1, 1874.<'> 5961. Aprpxirtennnces and erpiipments. Sec. 961. All things, belonging to the owners, which are onboard a ship, and are connected with its proper use, for the objects of the voyage and adventure in which the ship is engaged, are deemed its appurtenances. {n) Rf-pealerl Bcrtlon: (i) The originHl Bpction, instead of " money or other Sr.f. 'H'l. When- iin<- hHH the pnprnt «nrl nnnOirr tho perHonnl property. " had the word " BOinething." future int«-r<-Ht In » \h\nv. i>< n-nnHi. i,n.| th<- tiling ifl (c) Original section: p<-rihh«1)le. the latter rnay nrjiiin it t<. In- Knld. imd tlio Sec. 9()(). A ship iB any Btnieture fitted for naviga- proie«dB Invested for the Ij. iicllt of both jmrtieh, ae- tion. Every kiud of ship is included in the term cording to their reppertivH inti ri-htK: ixcipt in caKe of "Bhipping." a thing Bpetially appropriated to a particular UBe. 694 PERSONAL PROPERTY. 59G2-5970 5962. Foreign and domestic navigation. Sec. 9G2. Ships are engag-ed either in foreign or domestic navigation, or in the fisheries. Ships are engaged in foreign navigation when passing to or from a foreign countr}^; and in domestic navigation, when passing from place to place within the United States. 5963. Foreign and domcHlic ships distinguished. Sec. 963. A ship in the port of a state to which it belongs is called a domes- tic ship; in another port it is called a foreign ship. 5964. Several owners. Sec. 9G4. If .a ship belongs to several persons, not partners, and they differ as to its use or repair, the controversy may be determined by any court of com- petent jurisdiction. 5985. Owner for voyage. Sec 965. If the owner of a ship commits its possession and navigation to another, that other, and not the owner, is responsible for its repairs and sup- plies. 5966. Registry, etc. Sec. 966. The registry, enrollment, and license of ships are regulated by acts of congress. ARTICLE II. EDLES of NA\^GATI0N. 5970. Collisions. Sec 970. In the case of ships meeting, the following rules must be observed, in addition to those prescribed by that part of the Political Code which relates to navigation: Jtules as to shij^s meeting each other. 1. Whenever any ship, whether a steamer or sailing ship, proceefding in one direction, meets another ship, whether a steamer or sailing ship, proceeding in another direction, so that if both ships were to continue their respective courses they would pass so near as to involve the risk of a collision, the helms of both ships mvist be put to port so as to pass on the port side of each other; and this rule applies to all steamers and all sailing sliips, whether on the port or star- board tack, and whether closehauled or not, except where the circumstances of the case are such as to render a departure from the rule necessary in order to avoid immediate danger, and subject also to a due regard to the dangers of navigation, and, as regards sailing ships on the starboard tack closehauled, to the keeping such ships under command. The rule for sailing vessels. 2. In the case of sailing vessels, those having the wind fair must give way to those on a wind. When both are going by the wind, the vessel on the star- board tack must keep her wind, and the one on the larboard tack bear up strongly, passing each other on the larboard hand. When both vessels have the wind large or abeam, and meet, they must pass each other in the same way on the larboard hand, to effect which two last-mentioned objects the helm must be put to port. Steam vessels must be regarded as vessels navigating with a fair wind, and should give way to sailing vessels on a wind of either tack. Rules for steamers in narrow channels. 3. A steamer navigating a narrow channel must, whenever it is safe and prac- ticable, keep to that side of the fairway or mid-channel which lies on the star- board side of the steamer. 695 5970-5981 CIYIL CODE. Same. 4. A steamer when passing another steamer in such channel, must always leave the other upon the larboard side. Rules for steam vessels on different courses. 5. "When steamers must inevitably or necessarily cross so near that, by con- tinuing their respective courses, thei'e would be a risk of collision, each vessel must put her helm to port, so as always to pass on the larboard side of each other. 3Ieet i ng of stea mers. 6. The rules of this section do not apply to any case for which a different rule is provided by the regulations for the government of pilots of steamers a]iproaching each other within sound of the steam whistle, or by the regula- tions concerning lights upon steamers, prescribed under authority of the acts of congress approved August thirtieth, eighteen hundred and fifty-two, and April twenty-ninth, eighteen hundred and sixty-four. 5971. Collision from breach of rules. Sec. 971. If it ai)j)ears that a collision was occasioned by failure to observe vluj rule in the foregoing section, the owner of the ship by which such rule is infringed, cannot recover compensation for damages sustained by the ship in such collision, unless it appears that the circumstances of the case made a departui-e from the rule necessary. 5972. Breaches of such rules to imply willful default. Sec. 972. Damage to person or property arising from the failure of a shijD to observe any rule of section 970, must be deemed to have been occasioned by the willful default of the person in charge of the deck of such ship at the time, unless it appears that the circumstances of the case made a departure from the rule necessary. 5973. Loss, hmv apportioned. Sec. 973. Losses caused by collision are to be borne as follows: 1. If either party was exclusively in fault he must bear his own loss, and com- jDensate the other for any loss he has sustained; 2. If neither was at fault, the loss must be borne by him on whom it falls; 3. If both were in fault, the loss is to be equally divided, unless it appears that there was a great disparity in fault, in which case the loss must be equita- bly apportioned; 4. If it cannot be ascertained where the fault lies, the loss must be equally divided. CHAPTEK III. PRODUCTS OF THE MIND. 5980. How far the subject of ownership. Sec. 980. The author of any product of the mind, whether it is an invention, or a composition in letters or art, or a design, with or without delineation, or other graphical representation, has an exclusive ownership therein, and in the representation or expression thereof, which continues so long as the product and the representations or expressions thereof made by him remain in his pos- session. 5981. Joint authorship. Sec. 981. Unless othervv-ise agreed, a product of the mind in the production of which several pei-sons are jointly concerned, is owned by them as follows: 1. If the product is single, in equal proportions; 2. If it is not single, in proportion to the contribution of each. 696 PERSONAL PROPERTY. 5982-5994 5982. Transfer. Sec. 982. The owner of any product of the mind, or of any representation or exj)ression thereof, may transfer his property in the same. 5983. Effect of publication. Sec. 983. If the owner of a product of the mind intentionally makes it public, a coj)y or rej? reduction may be made public by any person, without responsi- bility to the owner, so far as the law of this state is concerned. 5984. Subsequent inventor, author, etc. Sec 984. If the owner of a product of the mind does not make it public, any other person subsequently and originally producing the same thing has the same right therein as the prior author, which is exclusive to the same extent against all persons except the prior author, or those claiming under him. 5985. Private ivritings. Sec 985. Letters and other j)rivate communications in writing belong to the person to whom the}^ are addressed and delivered; but they cannot be pubhshed against the will of the writer, except by authority of law, CHAPTER IV. OTHER KINDS OF PERSONAL PROPERTY. 5991. Trade-mark, ivhat may be appropriated. Sec 991. One who produces or deals in a particular thing, or conducts a par- ticular business, may appropriate to his exclusive use, as a trade-mark, any form, symbol, or name, which has not been so ajDj^ropriated by another, to designate the origin or ownership thereof, but he cannot exclusively appropriate any designation, or part of a designation, which relates only to the name, quality, or the description of the thing or business, or the place where the thing is produced, or the business is carried on. [Amendment, approved Ilarch 30, 1874; Amendments 1873-4, 224; took effect Juhj 1, 1874.^''^ [See also, upon the subject of trade-marks, ante, 3196.] 5992. Good will of business. Sec 992. The good will of a business is the expectation of continued public patronage, but it does not include a right to use the name of any person from whom it was acquired. 5993. Good will transferable. Sec. 993. The good will of a business is property, transferable like any other. 5994. Title deeds. Sec 994. Instruments essential to the title of real property, and which are not kept in a public office as a record, pursuant to law, belong to the person in whom, for the time Ueing, such title may be vested, and pass with the title. (a) The original did not have the concluding -words, " or the place where the thing is produced, or the business is carried on." 697 6000-6007 CIVIL CODE. I>^RT IV. ACQUISITION OF PEOPEKTY. Title I. Modes in which Property may be Acquired GOOO II. Occupancy 6006 III. Accession 6013 IT. Transfer 6039 V. Homesteads 6237 VI. Wills 6270 VII. Succession 6383 TITLE I. Bl0i)C0 in tuljjdj Propcrtij maij be 3lc(juiiti>. 6000. Properly, hoiv acquired. Sec. 1000. Property is acquired by: 1. Occupancy; 2. Accession; 3. Ti'ansfer; 4. Will; or, 5. Succession. 6001. Acquisition of property by exercise of eminent domain. Sec. 1001. Any person may, without further legislative action, acquire private property for any use specified in section 1238 of the Code of Civil Procedure either by consent of the owner or by proceedings had under the provisions of Title VII, Part III, of the Code of Civil Procedure; and any person seeking to acquire proj^erty for any of the uses mentioned in such title is "an agent of the state," or a " person in charge of such use," within the meaning of those terms as used in such title. This section shall be in force from and after the fourth day of April, eighteen hundred and seventy-two. TITLE 11. (Occu;)ancij. 6006. Simple occvpavcy. Sec. 1006. Occupancy for any period confers a title sufficient against all, except the state and those who have title by prescription, accession, transfer, will, or succession. 6007. Presfri/ition. Sec. 1007. Occupancy for the period prescribed by the Code of Civil Pro- cedure as sufficient to bar an action for the recover^' of the property confers a title thereto, denominated a title by prescription, which is sufficient against all. 698 ACCESSION. 6013-G019 TITLE III. %tttmo\u Chapter I. To Real Property G013 II. To Personal Property G025 CHAPTER I. ACCESSION TO REAL PROPERTY. 6013. Fixtures. Sec. 1013. When a person affixes bis property to the land of another, with- out an agreement permitting him to remove it, the thing affixed, except as pro- vided in section 1019, belongs to the owner of the land, unless he chooses to require the former to remQve it. [Amendment, approved March 30, 1874; Amendments 1873-4, 224; took effect July 1, 1874.<''> 6014. Alluvion. Sec. 1014. AVhere, from natural causes, land forms by imperceptible de- grees upon the bank of a river or stream, navigable or not navigable, either by accumulation of material or by the recession of the stream, such land belongs to the owner of the bank, subject to any existing right of way over the bank. 6015. Sudden removal of bank. Sec. 1015. If a river or stream, navigable or not navigable, carries away, by sudden violence, a considerable and distinguishable part of a bank, and bears it to the opposite bank, or to another part of the same bank, the owner of the part carried away may reclaim it within a year after the owner of the land to which it has been united takes possession thereof. 6016. Islands in navigable streams. Sec. 1016. Islands and accumulations of land, formed in the beds of streams which are navigable, belong to the state, if there is no title or prescription to the contrary. 6017. Li unnavigable streams. Sec. 1017. An island, or an accumulation of land, formed in a stream which is not navigable, belongs to the owner of the shore on that side where the island or accumulation is formed; or, if not formed on one side only, to the owners of the shore on the two sides, divided by an imaginary line drawn through the middle of the river. 6018. Islands formed by division of stream. Sec. 1018. If a stream, navigable or not navigable, in fonning itself a new arm, divides itself, and surrounds land belonging to the owner of the shore, and thereby forms an island, the island belongs to such owner. [Sec. 1019, as originally passed,*"^ was repealed by act approved March 30, 1874 (Amendments 1873-4, 224; took effect July 1, 1874), and a new section substituted in its place as follows :] 6019. What fixtures tenant may remove. Sec. 1019. A tenant may remove from the demised premises, any time during the continuance of his term, anything affixed thereto for jiurposes of trade, manufacture, ornament, or domestic use, if the removal can be effected without (a) The original section did not have the words "ex- forms a new course, abandoning its ancient bed. the cept as provided in section 1019." owners of the land newly occupied take, by way of iu- (6) Repealed section: demnity, the ancient bed abandoned, each in ijropor- Sec. 1019. If a stream, navigable or' not navigable, tion to the land of which he has been deprived. 699 6019-6031 CIVIL CODE. injmy to tlie premises, unless the thing lias, hj the manner in wliich it is affixed, become an integral part of tbe premises. [NeAV section, approved 31arch 30, 1874; Aniendmenls 1873-4, 224; took effect July 1, 1874. CHAPTEE II. ACCESSION TO TERSONAL PEOPERTY. 6025. Accession by uniting several things. Skc. 1025. When things belonging to different owners have been united so as to form a single thing, and cannot be separated without injury, the whole belongs to the owner of the thing which forms the principal part; who must, however, reimburse the value of the residue to the other owner, or surrender the whole to him. 6026. Principal part, what. Sec. 102G. That part is to be deemed the principal to which the other has been united onl}- for the use, ornament, or completion of the former, unless the latter is the more valuable, and has been united withovit the knowledge of its owner, who may, in the latter case, require it to be separated and retiu-ned to him, although some injur}'' should result to the thing to which it has been united. 6027. Same. Sec. 1027. If neither part can be considered the principal, within the rule prescribed by the last section, the more valuable, or, if the values are nearly equal, the more considerable in bulk, is to be deemed the principal part. 6028. Uniting materials and workmariship. Sec 1028. If one makes a thing from materials belonging to another, the latter may claim the thing on reimbursing the value of the workmanship, unless the value of the workmanship exceeds the value of the materials, in which case the thing belongs to the maker, on reimbursing the value of the materials. 6029. Inseparable materials. Sec. 1029. Where one has made use of materials which in part belong to him and in part to another, in order to form a thing of a new description, without having destroyed any of the materials, but in such a way that they cannot be separated without inconvenience, the thing formed is common to both proprie- tors; in proportion, as respects the one, of the materials belonging to him, and as respects the other, of the materials belonging to him and the price of his workmanship. 6030. Maleriah of several owners. Sec 1030. When a thing has been formed by the admixture of several ma- terials of different owners, and neither can be considered the principal substance, an owner without whose consent the admixture was made may require a sepa- ration, if the materials can be separated without inconvenience. If they cannot be tluis separated, tlie owners ac(piire the thing in common, in proportion to the quantity, quality, and value of their materials; but if the materials of one were far superior to those of the others, both in quantity and value, he may claim the thing on reimbur.siug to the others the value of their materials. 6031. Willful tres^jossers. Sec 1031. The foregoing sections of this article are not applicable to cases in which one willfully uses the materials of another without his consent; but, in sucli cases, the product belongs to the owner of the material, if its identity can be traced. 700 TEANSFEE. 6032-6046 6032. Owner may elect behceen the thing and its value. Sec. 1032. In all cases where one whose material has been used without his knowledge, in order to form a product of a different description, can claim an interest in such product, he has an option to demand either restitution of his material in kind, in the same quantity, weight, measure, and quality, or the value thereof; or where he is entitled to the product, the value thereof in place of the i^roduct. 6033. Wrongdoer liable in damages. Sec. 1033. One who Avrongfully employs materials belonging to another, is liable to him in damages, as well as under the foregoing provisions of this chapter. TITLE lY. Chapter I. Transfer in General ,. C039 II. Transfer of Eeal Property G091 III. Transfer of Personal Property G135 IV, Eecording Transfers of Real Property 6158 V. Unlawful Transfers 6227 CHAPTER I. TEANSFERS IN GENERAL. Article I. Definition of Tbansfer 6039 II. What mat be Tkansfekked 6044 III. Mode of Tkansfek 6052 IV. Intebpeetation of Grants 6066 V. Effect of Tkansfek 6083 ARTICLE I. definition of transfer. 6089. Transfer, what. Sec 1039. Transfer is an act of the parties, or of the law, by which the title to property is conveyed from one living person to another. 6040. Voluntary transfer. Sec. 1040. A volvintary transfer is an executed contract, subject to all rules of law concerning contracts in general; except that a consideration is not necessary to its validity. ARTICLE II. what may be transferred. 6044. What may be transferred. Sec. 1044. Property of any kind may be transferred, except as otherwise provided by this article. 6045. Possibility. Sec 1045. A mere possibility, not coupled with an interest, cannot be trans- ferred. 6046. Bight of re-entry can be transferred. Sec 1046. A right of re-entiy, or of repossession for breach of condition subsequent, can be transferred. 701 6047-6066 CIVIL CODE. 6047. Owner ousted of possession may transfer. Sec. 1047. Any jDerson claiming title to real property' in the adverse posses- sion of another may transfer it with the same effect as if in actual possession. AETICLE III. MODE OF TKANSFER. 6052. JVhen oral. Sec. 1052. A transfer may be made without writing, in every case in -whicli a writing is not esin'essly required by statute. 6053. Transfer grant defined. Sec 1053. A transfer in writing is called a grant, or conveyance, or bill of sale. The term "grant," in this and the next two articles, includes all these instruments, unless it is specially applied to real proj)erty. \Amendmevt, ap- proved March 30, 1874; Ameyidments 1873-4, 225; took effect July 1, 1874.*"^ 6054. Delivery necessary. Sec. 1054. A grant takes effect, so as to vest the interest intended to be trans- ferred, only upon its delivery by the grantor. 6055. Dale. Sec. 1055. A grant daly executed is presumed to have been delivered at its date. 6056. Delivery to grantee is necessarily absolute. Sec. 105G. A grant cannot be delivered to the grantee conditionally. Deliv- ery to him, or to his agent as such, is necessarily absolute, and the instrument takes effect thereupon, discharged of any condition on which the delivery was made. 6057. Delivery in escrow. Sec 1057. A grant may be deposited by the grantor with a third person, to be delivered on performance of a condition, and, on delivery by the depositary, it will take effect. AVhile in the possession of the third person, and subject to condition, it is called an escrow. 6058. Surrendering or canceling grant does not reconvey. Sec 1058. Redelivering a grant of real property to the grantor, or canceling it, does not operate to retransfer the title. 6059. Constructive delivery. Sec. 1059. Though a grant be not actually delivered into the possession of the grantee, it is yet to be deemed constructively delivered in the following cases: 1. Where the instrument is, by the agreement of the parties at the time of execution, understood to be delivered, and under such circumstances that the grantee is entitled to immediate delivery; or, 2. Wliere it is delivered to a stranger for the benefit of the grantee, and his assent is shown, or may be presumed. [Sec lOGO'"* was repealed by act approved March 30, 1874; Amendments 1873-4, 225; took effect July 1, 1874.] ARTICLE IV. INTEUPRETATION OF GUANTS. 60G6. Grants, how interpreted. Sec lOGG. Grants are to be interpreted in like manner with contracts in gen- eral, except so far as is otherwise provided in this article. (n) Orlginnl section: upon its execution, even though the grantor retain Sec. lO.J. A trauBfcT in writing la called a grant. iJOBsesuion, unices a contrary inttntion apwears. (/>) llf-ppahd section: 8ec. 1060. A grunt made as a mere gratuity takes effect 702 TRANSFER. G0G7-G092 6067. Limitations, hoiv controlled. Sec. 10G7. A clear and distinct limitation in a grant is not controlled by other words less clear and distinct. 6068. Recitals, ivhen resorted to. Sec. 1068. If the operative words of a grant are doubtful, recourse may be had to its recital to assist the constructions. 6069. Interpretation against grantor. Sec. 10G9. A grant is to be interpreted in favor of the grantee, except that a reservation in any grant, and every grant by a public officer or body, as such, to a private party, is to be interpreted in favor of the grantor. 6070 . Irreconcilable provis ions . Sec. 1070. If several parts of a grant are absolutely irreconcilable, the former part prevails. 6071. Meaning of" heirs" and " issue" in certain remainders. Sec 1071. Where a future interest is limited by a grant to take effect on the death of any person without heirs, or heirs of his body, or without issue, or in equivalent words, such words must be taken to mean successors, or issue living at the death of the person named as ancestor. 6072. Wo7'ds of inheritance unnecessary. Sec. 1072. Words of inheritance or succession are not requisite to transfer a fee in real property. ARTICLE V. EFFECT OF TRANSFER. 6083. What title jMsses. Sec 1083. A transfer vests in the transferee all the actual title to the thing transferred which the transferrer then has, unless a different intention is ex- pressed or is necessarily implied. 6084. Incidents. Sec 1084. The transfer of a thing transfers also all its incidents, unless expressly excepted; but the transfer of an incident to a thing does not transfer the thing itself. [See also post, 8540.] 6085. Grant may inure to benefit of stranger. Sec 1085. A present interest, and the benefit of a condition or covenant resjiecting property, may be taken by any natural person under a grant, although not named a party thereto. CHAPTER II. TRANSFER OF RE.\L PROPERTY. Abticlb I. Mode of Teansfer 6091 II. Effect of Tkansfkr 6104 ARTICLE I. MODE OF TRANSFER. 6091. Requisites for transfer of certain estates. Sec 1001. An estate in real property, other than an estate at will or for a term not exceeding one year, can be transferred only by operation of law, or by an instrument in writing, subscribed by the party disposing of the same, or by his agent thereunto authorized by writing. 6092. Form of grant. Sec 1092. A grant of an estate in real jproperty may be made in substance as follows : 703 6092-G105 CIVIL CODE. " I, A. B., grant to C. D. all that real property situated in (insert name of county) county, State of California, bounded (or described) as follows: (here insert description, or if the land sought to be conveyed has a descriptive name, it may be described by the name, as for instance, ' The Norris Eanch.') " Witness my hand this (insert day) day of (insert month) 18—. "A. B." 6093. Grant by married women, hoiv acknowledged. Sec. ]093. No estate in the real property of a married woman passes by any grant purporting to be executed or acknowledged by her, unless the grant or instrument is acknowledged by her in the manner prescribed by sections 1186 and 1191. 6094. Power of attorney of married women, hoiv acknoivledged. Sec. 1094. A power of attorney of a married woman, authorizing the execu- tion of an instrument transferring an estate in her separate real property, has no validity for that purpose until acknowledged by her in the manner provided in sections 118G and 1191. 6095. Attorney in fact, how must execute for principal. Sec 1095. When an attorney in fact executes an instrament transferring an estate in real i^roperty, he must subscribe the name of his principal to it, and his own name as attorney in fact. An Act relatiug to conveyances of real estate. Approved March 11, 1874; 1873-4, 345. Conveyances by persons ivhose names are changed. Section 1. Any person in whom the title of real estate is vested, who shall afterwards, from any cause have his or her name changed, shall, in any convey- ances of real estate so held, set forth the name in which he or she derived title to said real estate. Record of conveyances made by j)ublic officers. Sec 2. All conveyances of real estate, except patents issued by the state as a party, made by any public officer pursuant to any law of this state, shall, when recorded by the county recorder, be by him alphabetically indexed in the "Index of grantors," both in the name of the officer making such sale, and in the name of the person owning the proj^erty so sold. Indexing of such conveyances. Sec 3. It is hereby made the duty of all county recorders to alphabetically index in the "Index of grantors," both in the name by which title was acquired, and also the name by which the same was conveyed, all conveyances referred to in section one of this act. Sec 4. This act shall be in force from and after its passage. ARTICLE 11. EFFECT OF TRANSFER. 6104. What easements pass with property. Sec 1104. A transfer of real property passes all easements attached thereto, and creates in favor thereof an easement to use other real property of the person whose estate is transferred in the same manner and to the same extent as such property was obviously and permanently used by the person whose es.tate is transferred, for the benefit thereof, at the time when the transfer was agreed upon or completed. 6105. When fee simple title is presumed to pass. Sec 1105. A fee simple title is presumed to be intended to pass by a grant 704 TRANSFER. 6105-6113 of real property, unless it appears from the grant that a lesser estate was in- tended. 6106. Subsequently acquired titte passes brj operation of law. Sec. 1106. Where a person purports by proper instrument to grant real i)rop- erty in fee simple, and subsequently acquires any title, or claim of title thereto, the same passes by operation of law to the grantee, or his successors. 6107. Grant, how far conclusive on purchaser. Sec. 1107. Every grant of an estate in real projoerty is conclusive against the grantor, also against every one subsequently claiming under him, except a pur- chaser or incumbrancer who in good faith and for a valuable consideration acquires a title or lien by ah instrument that is first duly recorded. 6108. Conveyances by owner for life or for years. Sec. 1108. A grant made by the owner of an estate for life or years, purport- ing to transfer a greater estate than he could lawfully transfer, does not work a forfeiture of his estate, but passes to the grantee all the estate which the grantor could lawfully transfer, 6109. Grant made on condition subsequent. Sec 1109. Where a grant is made upon condition subsequent, and is subse- quently defeated by the non-performance of the condition, the person other- wise entitled to hold under the grant must reconvey the projjerty to the grantor or his successors, by grant, duly acknowledged for record. 6110. Grant on condition precedent. Sec. 1110. An instrument purporting to be a grant of real property, to take effect upon condition precedent, passes the estate upon the performance of the condition. [Amendment, approved March 30, 1874; Amendments 1873-4, 225; took effect July 1, 1874.^=^^ 6111. Grant of rents, reversions, and remainders. Sec 1111. Grants of rents or of reversions or of remainders are good and effectual without attornments of the tenants; but no tenant who, before notice of the grant, shall have paid rent to the grantor, must suffer any damage thereby. 6112. Boundary by highway, what passes. Sec 1112. A transfer of land, bounded by a highway, passes the title of the person whose estate is transferred to the soil of the highway in front to the centre thereof, unless a different intent appears from the grant. [Amendment, approved March 30, 1874; Amendments 1873-4, 225; took effect July 1, 1874.'^^ 6113. Implied covenants. Sec. 1113. From the use of the word "grant" in any conveyance by which an estate of inheritance or fee simple is to be passed, the following covenants, and none other, on the part of the grantor for himself and his heirs to the grantee, his heirs, and assigns, are implied, unless restrained by express terms contained in such conveyance: 1. That previous to the time of the execution of such convej'ance, the grantor has not conveyed the same estate, or any right, title, or interest therein, to any person other than the grantee; 2. That such estate is at the time of the execution of such conveyance free from encumbrances done, made, or suffered by the grantor, or any joerson claim- ing under him. (o) Original section: formance of the condition, the grantee is entitled to a Sec. 111(1. An instniment purporting to be a grant of grant from the grantor or his successors for the prop- real property, to take effect upon condition precedent, erty, duly acknowledged for record, does not pass the estate upon the performance of the [b) The original section did not have the words condition. Such instrument is an executory contract " unlets a different intent appears from the grant." for the conveyance of the property. Upon the per- 45 705 6113-6142 CIYIL CODE. Such covenants may be sued upon in the same manner as if they had been expressly inserted in the conveyance. 6114. Incumhrances, ivhat include. Sec. 1114. The term "incumbrances" inchules taxes, assessments, and all liens upon real prof)erty. [Amendment, approved 3Iarch 30, 1874; Amendments 1873-4, 225; took effect July 1, 1874.''> 6115. Lineal and collateral warrantees abolished. Sec. 1115. Lineal and collateral warrantees, with all their incidents, are abolished; but the heirs and devisees of every person who has made any cove- nant or agreement in reference to the title of, in, or to any real propert}-, are answerable upon such covenant or agreement to the extent of the land de- scended or devised to them, in the cases and in the manner prescribed by law. CHAPTER III. TEANSFER OF PERSONAL PROPERTY. Akticle I. Mode of Ti!Ansfee 6135 II. What opekates as a Tkansfeb 6140 III. Gifts 6146 ARTICLE I. MODE OF TRANSFER. 6135. Wlien must be in ivriting. Sec 1135. An interest in a ship, or in an existing trust, can be transferred only by operation of law, or by a written instrument, subscribed by the person making the transfer, or by his agent. 6136. Tramtfer by sale, etc. Sec. 1136. The mode of transferring other personal property by sale is regu- lated by the title on that subject, in Division Third of this Code. ARTICLE II. WHAT OPERATES AS A TRANSFER. 6140. Transfer of title under sale. Sec. 1140. The title to personal property, sold or exchanged, passes to the buyer whenever the parties agree upon a present transfer, and the thing itself is identified, whether it is separated from other things or not. 6141. Transfer of title under executory agreement for sale. Sec. 1141. Title is transferred by an executory agreement for the sale or ex- change of i^ersonal property only when the buyer has accepted the thing, or when the seller has completed it, prepared it for delivery, and offered it to the buyer, with intent to transfer the title thereto, in the manner prescribed by the chapter upon offer of performance. 6142. When buyer acquires better title than seller has. Sec. 1142. Where the possession of personal property, together with a power to dispose thereof, is transferred by its owner to another person, an executed sale Ijy the latter, while in possession, to a buyer in good faith and in the ordi- nary course of business, for value, transfers to such buyer the title of the former owner, though he may be entitled to rescind, and does rescind the transfer made by him. (o) Original section: cution liens; also, vendors', mechanics', and mortgage Sec. 11 U. The term " incumbrances " includes taxes liens; also, all other debts or demands which are liens and BBsessmentB; also, attachment, judgment, and exe- upon real property. 706 TRANSFER. 6146-6158 ARTICLE III. GIFTS. 6146. Gifts defined. Sec. 1146. A gift is a transfer of personal property, made voluntarily, and without consideration. 6147. Gift, hoiv made. Sec. 1147. A verbal gift is not valid, imlesstlie means of obtaining possession and control of the thing are given, nor, if it is capable of delivery, unless there is an actual or symbolical delivery of the thing to the donee. 6148. Gift not revocable. Sec. 1148. A gift, other than a gift in view of death, cannot be revoked by the giver. 6149. Gift in vieio of death, what. Sec. 1149. A gift in view of death is one which is made in contemplation, fear, or peril of death, and with intent that it shall take effect only in case of the death of the giver. 6150. When gift presumed to he in vieto of death. Sec. 1150. A gift made during the last illness of the giver, or under circum- stances which would naturally impress him with an expectation of speedy death, is presumed to be a gift in view of death. 6151. Revocation of gift in view of death. Sec. 1151. A gift in view of death may be revoked by the giver at any time, and is revoked by his recovery from the illness, or escape from the peril, under the i^resence of which it was made, or by the occurrence of any event which would operate as a revocation of a will made at the same time; but when the gift has been delivered to the donee, the rights of a bona fide purchaser from the donee before the revocation, shall not be affected by the revocation. [Amend- ment, approved March 30, 1874; Amendments 1873-4, 226; took effect July 1, 1874."^^ 6152. Effect of loill upon gift. Sec. 1152. A gift in view of death is not affected by a previous will; nor by a subsequent will, unless it expresses an intention to revoke the gift. 6153. When treated as legacy. Sec. 1153. A gift in view of death must be treated as a legacy, so far as relates only to the creditors of the giver. CHAPTER IV. EECORDING TRANSFERS. Article I. What mat be Recoeded 6158 II. Mode of Recouding *il69 III. Proof and Acknowledgments op Instruments 6180 IV. Effect of Recokding ok of the want thereof 6213 ARTICLE I. WHAT MAY BE RECORDED. 6158. What may he recorded. Sec, 1158. Any instrument or judgment affecting the title to or possession of real property may be recorded under this chapter. (a) The original section did not have the last clavise commencing with the words " but when the gift has been delivered to the donee." 707 G159-G170 CIYIL CODE. 6159. Judgments may be recorded wUhont achwidedgment. Sec. 1159. Judgments affecting the title to or possession of real property, authenticated by the certificate of the clerk of the court in -which such judg- ments were rendered, may be recorded without acknowledgment or further .„t % 1160. Add, " and wliere letters patent liave been lost or are l>eyoiid the control of any party deraignin- title therefrom 3dgment. or for any reason they remain unrecorded, any person claiming or from the State of Cali- title tliereiinderniay cause a transcript of the copy of such let- -l- ^ i i i ters patent kept by the government issuing the same, duly cer- ^^^^^° l^W, may be recorded tified by the ollicer or individual having lawful custody of such copy, to be recorded in lieu of the original ; and such "recorded copy shall \va\q prima facie the same force and effect as the original, for title or for evidence, until said original letters pat- rl unless it belono-q to the ent be recorded." [In effect, May 31, 1878.1 ' ^"^®^^ It DeiongS to tue «.iaoo |.xvy.xviv..vc ^^^ ^-' I aud fifty-ulne, eleven hun- dred and sixt}', twelve hundred and two, or twelve hundred and three, its exe- cution must be acknowledged by the person executing it, or if executed by a corporation, by its president or secretarj^, or proved by a subscribing witness, or as provided in sections eleven hundred and ninety-eight and eleven hundred and ninety-uine, and the acknowledgment or proof certified in the manner pre- scribed by Article III of this chapter. [Amendment, approved March 30, 1874; Amendments 1873-4, 220; took effect July I, 1874.'''^ 6162. Same. Skc. 11G2. An instrument j^roved and certified 2)ursuant to sections 1198 and 1199 may be recorded in the j)roper office if the original is at the same time deposited therein to remain for public inspection, but not otherwise. [Sec 1163'*" was repealed by act approved March 30, 1874; Amendments 1873-4, 226; took effect July 1, 1874.] 6164. Transfers in trust, etc. Sec. 1164. Transfers of j^roperty in trust for the benefit of creditors, and transfers or liens on property by waj' of mortgage, are required to be recorded in the cases sjDecified in the titles on the special relation of debtor and creditor, and the chapter on mortgages, respectively. 6165. Fees of recorder to he indorsed. Sec 1165. The recorder must in all cases indorse the amount of his fee for recordation on the instrument recorded. [New section, approced Marcli 11, 1874; Amendments 1873-4, 274; took effect sixtietli day of I cr passage. ARTICLE II. MODE OF EECOEDING. 61G9. In XL-hut office. Sec 11G*J. Instmments entitled to be recorded must be recorded by the county recorder of the county in which the real property affected thereby is situated. 6170. Instrument, xclien deemed recorded. Sec 1170. An instrument is deemed to be recorded, when, being duly acknowledged or proved, and certified, it is deposited in the recorder's office with the proper officer for record. [Amendment, approved Ilarch 30, 1874; Aotendnients 1873-4, 226; took effect July 1, 1874.'"' (a) Tin- uriKinal HIM linn dill not liavc- the words "or (c) Ori^iiualeection: OR iTONlilid in witionH tUvi ii liinidri-fl and ninety- Sec. 1170. An iustrumcnt ia recorded when duly no- I i^'ht unil ill VI I) liundriwl und ninity-uinc." • kuowledged or provc-d. certiticd, and deposited in the (M Itipi-jilid witi. n: rerordir's offiie with the proper lilicer, and 1,y him Six. hi:;. An inslniinent excciiU'd by an attorney in filed for record, bv noting therton siu h filing, with the f»rt must not U- recordf-d nntil the power of attorney minute, hour, day, and year thereof, aud Bubscribiug authorizing the execution of the instrument is filed for thi- same. record in the satue office. 708 TEANSFEK. G171-G183 6171. Books of record. Sec. 1171. Grants, absolute in terms, are to be recorded in one set of books, and mortgages in another. 6172. Duties of recorder. Sec. 1172. The duties of county recorders, in respect to recording instru- ments, are prescribed by the Political Code. 6173. Transfer of vessels. Sec. 1173. The mode of recording transfers of ships registered under the laws of the United States is regulated by acts of congress. AKTICLE III. PEOOF AND ACKNOWLEDGMENT OF INSTRUMENTS. 6180. By whom acknowledgments may he taken in tliis state. Sec. 1180. The proof or acknowledgment of an instrument may be made at an}' place within this state before a justice or clerk of the supreme court. 6181. Same. Sec. 1181. The proof or acknowledgment of an instrument may be made in this state within the city, county, or district for which the officer was elected or appointed, before either: 1. A judge or clerk of a court of record; or, 2. A mayor or recorder of a city; or, 3. A court commissioner; or, 4. A county recorder; or, 5. A notary public; or, 6. A justice of the peace. 6182. By tohom taken ivithout the state. Sec. 1182. The proof or acknowledgment of an instrument may be made without this state, but within the United States, and within the jurisdiction of the officer, before either: 1. A justice, judge, or clerk of any court of record of the United States; or, 2. A justice, judge, or clerk of any court of record of any state; or, 3. A commissioner aj)pointed by the governor of this state for that purpose; or, 4. A notary public; or, 5. Any other officer of the state where the acknowledgment is made author- ized by its laws to take such proof or acknowledgment. 6183. Acknowledgment, by whom taken ivithout United States. Sec. 1183. The proof or acknowledgment of an instrument may be made without the United States, before either: 1. A minister, commissioner, or charge d'affaires of the United States, resi- dent and accredited in the country where the proof or acknowledgment is made; or, 2. A consul, vice-consul, or consular agent of the United States, resident in the country where the proof or acknowledgment is made; or, 3. A judge of a court of record of the country where the proof or acknowl- edgment is made; or, 4. Commissioners appointed for such purposes by the governor of the state, pursuant to special statutes; or, 5. A notary i:)ublic. [Aniendmeid, approved March 30, 1874; Amendments 1873-4, 227; took effect July 1, 1874.<*> . (a) The original section did not have the words " consular agent." 709 618J^6191 CmL CODE. 6184. Deputy can take acknowledgment. Sec. 1184. "When any of the officers mentioned in tlie four preceding sections are aiitborized by law to appoint a deputy, the acknowledgmeut or proof may- be taken by such deputy, in tlie name of his principal. 6185. ri'^quisites for acknoidedipnents. Sec. 1185. The acknowledgment of an instrument must not be taken, unless the officer taking it knows, or has satisfactory evidence, on the oath or affirma- tion of a credible witness, that the person making such acknowledgment is the individual who is described in and who executed the instrument; or, if executed by a corporation, that the person making such acknowledgment is the president or secretary' of such corporation. 6186. Acknoivledgment by married tuomen. Sec. 1186. The acknowledgment of a married woman to an instrument pur- I^orting to be executed by her, must not be taken, unless she is made acquainted by the officer with the contents of the instrument on an examination without the healing of her husband; nor certified, unless she thereupon acknowledges to the officer that she executed the instrument, and that she does not wish to retract such execution. 6187. Same. Sec. 1187. A conveyance by a married woman has the same effect as if she were unmarried, and may be acknowledged in the same manner, except as mentioned in the last section; but such conveyance has no validity until so acknowledged. 6188. Certificate to he indorsed on acknoivledgment. Sec. 1188. An officer taking the acknowledgment of an instrument, must indorse thereon, or attach thereto, a certificate substantially in the forms here- inafter prescribed. [Amendment, approved March 30, 1874; Amendments 1873-4, 227; took effect July 1, 1874.*^ > 6189. General form of certificate. Sec 1189. The certificate of acknowledgment, unless it is otherwise in this article provided, must be substantially in the following form: State of , ] County of . f On this day of , in the year , before me [here insert the name and quality of the officer], personally ajipeared , known to me [or proved to me on the oath of ] to be the person whose name is subscribed to the within instniment, and acknowledged to me that he [or they] executed the same. 6190. Form of acknowledgment by corporation. Sec. 1190. The certificate of acknowledgment of an instniment executed by a corporation must be substantially in the following form : State of , ] County of . ] ^^• On this day of , in the year , l)efore me [here insert the name and quality of the officer], personally appeared , known to me [or proved to me on the oath of ] to be the president [or the secretaiy] of the corpora- tion that executed the within instrument, and acknowledged to me that such corporation executed the same. 6191. Form of certificate of acknoxoledgment by married icomen. Sec. 1191. The certificate of acknowledgment by a maiiied woman must be substantially in the following form: (a) The original eettion did not havo the words " or attach thereto." 710 TKANSFER. 6191-6197 State of , County of ^ On this day of , in the year , before me [here insert the name and quality of the officer], personally appeared , known to me [or proved to me on the oath of ] to be the person whose name is subscribed to the within instrument, described as a married woman; and upon an examination without the hearing of her husband I made her acquainted with the contents of the in- strument, and thereupon she acknowledged to me that she executed the same, and that she does not wish to retract such execution. 6192. Form of certificate of acknoioledgmenl by attorney in fact. Sec. 1192. The certificate of acknowledgment by an attorney in fact, must be substantially in the following form: St.\te of County of ^ On this day of , in the year , before me [here insert the name and quality of the officer], personally appeared , known tome [or proved to me on the oath of ] to be the person whose name is subscribed to the within instrument as the attorney in fact of ■ , and acknowledged tome that he sub- scribed the name of thereto as principal, and his own name as attorne}^ in fact. 6193. Officers must affix their signatures. Sec. 1193. Officers taking and certifying acknowledgments or proof of instru- ments for record, must authenticate their certificates by affixing thereto their signatures, followed by the names of their offices; also, their seals of office. If by the laws of the state or country where the acknowledgment or proof is taken, or by authority of which they are acting, they are required to bave official seals, 6194. Certificate of authority of justices in certain cases. Sec. 1194. The certificate of proof or acknowledgment, if made before a jus- tice of the peace, when used in any county other than that in which he resides, must be accompanied by a certificate under the hand and seal of the clerk of the county in which the justice resides, setting forth that such justice, at the time of taking such proof or acknowledgment, was authorized to take the same, and that the clerk is accjuainted with his handwriting, and believes that the signa- ture to the original certificate is genuine, 6195. Proof of execution, hoic made. Sec. 1195. Proof of the execution of an instrument, when not acknowledged, may be made either: 1, By the party executing it, or either of them; or 2, By a subscribing witness; or 3, By other witnesses, in cases mentioned in section 1398, 6196. Witness must be personally known to officer. Sec 1196. If by a subscribing witness, such witness must be personally known to the officer taking the proof to be the person whose name is subscribed to the instrument as a witness, or must be proved to be such by the oath of a credible witness. 6197. Witness must jorove , what. Sec. 1197. The subscribing witness must prove that the person whose nnme is subscribed to the instrument as a party is the person described in it, and that such person executed it, and that the witness subscribed his name therei|^s a witness. 711 6198-6203 CWIL CODE. 6198. Handwriting may he proved, ichen. Sec. 1198. The execution of au instrument may be established by proof of the handwiiting of the party and of a subscribing witness, if there is one, in the following cases: 1. When the parties and all the subscribing witnesses are dead; or, 2. AVhen the parties and all the subscribing witnesses are non-residents of the state; or, 3. When the place of their residence is unknown to the party desiring the proof, and cannot be ascertained by the exercise of due diligence; or, 4. "VMien the subscribing witness conceals himself, or cannot be found by the officer by the exercise of due diligence in attemj^ting to serve the subpoena or attachment; or, 5. In case of the continued failure or refusal of the witness to testify, for the space of one hour, after his appearance. 6199. Evidence of handwriting must jyrove what. Sec. 1199. The evidence taken under the preceding section must satisfac- toril}- prove to the officer the following facts: 1. The existence of one or more of the conditions mentioned therein; and, 2. That the witness testifying knew the person whose name purports to be subscribed to the instrument as a party, and is well acquainted with his signa- ture, and that it is genuine; and, 3. That the witness testifying personally knew the person who subscribed the instrument as a witness, and is well acquainted with his signature, and that it is genuine; and, ' 4. The place of residence of the witness. [Amendment, approved March 30, 1874; Amendments 1873-4, 227; took effect July 1, 1874.^''> 6200. Certificate of proof Sec. 1200. An oflicer taking proof of the execution of any instrument must, in his certificate indorsed thereon or attached thereto, set forth all the matters required by law to be done or known by him, or proved before him on the pro- ceeding, together with the names of all the witnesses examined before him, their places of residence respectively, and the substance of their testimon}'. 6201. Officers authorized to do certain things. Sec 1201. Officers authorized to take the proof of instruments are authorized in such proceedings: 1. To administer oaths or affirmations, as prescribed in section 2093, Code of Civil Procedure; 2. To employ and swear interpreters; 3. To issue subpoena, as prescribed in section 1986, Code of Civil Procedure. 4. To punish for contempt, as prescribed in sections 1991, 1993, 1994, Code of Civil Procedure. The civil diiniugcs and forfeiture to the party aggrieved are prescribed in secticju 1992, Code of Civil Procedure. 6202. ir/cu iny/nnnent imjrroperly certified, party may have action to correct error. Sec 1202. AVlieu the acknowledgment or proof of the execution of an in- strument is properly made, but defectively certified, any party interested may have an action in the district court to obtain a judgment correcting the cer- tificate. 6203. Art ion to ohtain jadgmcnt (f proof of an instrument. Sec 1203. Any person interested under an instrument entitled to be proved in) The orijfinal Bcctlou ha 6240. Exempt from forced sale. Sec. 1240. The homestead is exempt from execution or forced sale, except as in this title provided. 6241. Subject to execution, ivhen. Sec. 1241. The homestead is subject to execution or forced sale in satisfac- tion of judgments obtained : 1. Before the declaration of homestead was filed for record, and which con- stitute liens upon the premises; 2. On debts secured by mechanics', laborers', or vendors' liens uj)on the premises; 3. On debts secured by mortgages upon the premises, executed and acknowl- edged by the husband, wife, or an unmarried claimant; 4. On debts secured by mortgages upon the premises, executed and recorded before the declaration of homestead was filed for record. [Amendment, approved March 30, 1874; Amendments 1873-4, 229; took effect July 1, 1874.^'^' 6242. Hoio conveyed or incumbered. Sec. 1242. The homestead of a married person cannot be conveyed or in- cumbered unless the instrument by which it is conveyed or incumbered is executed and acknowledged by both husband and wife. 6243. How abandoned. Sec. 1243. A homestead can be abandoned only by a declaration of abandon- ment, or a grant thereof, executed and acknowledged: 1. By the husband and wife, if the claimant is married; 2. By the claimant, if unmarried. 6244. Same. Sec, 1244. A declaration of abandonment is effectual only from the time it is filed in the office in which the homestead was recorded, 6245. Proceedings on execution against homestead. Sec. 1245. When an execution for the enforcement of a judgment obtained in a case not within the classes enumerated in section 1241, is levied upon the (a) Original section: (c) Original section: Sec. 12:i7. The homestead consists of a quantity of Sec. 1239 The husband cannot select a homestea land, on which the claimant resides, selected as in this from the separate property of the wife, title provided. (rf) The original section in the first subdivision, in- (6) Original section: stead of " premises " had the words " land out of which Sec. 1*238. It may be selected by the claimant from the homestead is carved." In the second, third and any land in the possession of the claimant, or of the fourth subdivisions, instead of " premises " it had the husband of the claimant. word " land." 715 6245-6257 CIVIL CODE. homestead, the judgment creditor may apply to the county judge of the county in which the homestead is situated for the appointment of persons to appraise the value thereof. 6246. Verified petition. Sec. 1246. The application must be made upon a verified" petition, showing: 1. The fact that an execution has been levied upon the homestead; 2. The name of the claimant; 3. That the value of the homestead exceeds the amount of the homestead exemption. 6247. Filing. Skc. 1247. The petition must be filed with the clerk of the county court. 6248. Xotice. Sec 1218. A copy of the joetition, with a notice of the time and place of hearing, must be served upon the claimant, at least two dajs before the hearing. 6249. Hearing and appointment of appraiser. Sec. 1249. At the hearing the judge may, uj^on proof of the service of a copy of the petition and notice, and of the facts stated in the petition, appoint three disinterested residents of the county to appraise the value of the home- stead. 6250. Oath of appraiser. Sec. 1250. The j^ersous a2)pointed, before entering ujion the performance of their duties, must take an oath to faithfully perform the same. 6251. View of premises. Sec. 1251. They must view the jDremises and appraise the value thereof, and if the appraised value exceeds the homestead exemption they must determine whether the land claimed can be divided without material injury. 6252. Report of appraisers. Sec. 1252. "Within fifteen days after their ai^pointment they must make to the judge a report in Avritiug, Avhich report must show the appraised value and their determination upon the matter of a division of the land claimed. 6253. Division of property , lohen. Sec. 1253. If, from the report, it appears to the judge that the land claimed can be divided without material injury, he must, by an order, direct the ap- praisers to set off to the claimant so much of the laud, including the residence, as will amount in value to the homestead exemption, and the execution ma^' be enforced against the remainder of the land. 6254. Sale, ichen. Sec. 1254. If, from the report, it appears to the judge that the land claimed exceeds in value the amount of the homestead exeuq^tion, and that it cannot be divided, he must make an order directing its sale under the execution. 6255. nids. Skc. 1255. At such sale no l)id must be received, unless it exceeds the amount of the homestead exemption. 6256. Ajjjjlifalion of proceeds of sale. Sec. 1256. If the sale is made, the proceeds thereof, to the amount of the homestead exemption, must be paid to the claimant, and the balance applied to the satisfaction of the execution. 6257. Money resulting from execution sale protected. Sec 1257. The money paid to the claimant is entitled, for the period of BEX months thereafter, to the same protection against legal process and the vol- 716 HOMESTEADS. G257-G2G1 untaiy disposition of the husband, which the law gives to the homestead. [Ame7idment, approved llarch 30, 1874; Amendments 1873-4, 230; took t'ffect Jul;/ 1, 1814:.^'^ 6258. Compevsaiion of appraisers. Sec. 1258. The court must fix the compensation of the appraisers, not to exceed five dollars per day each for the time actually engaged. 6259. Costs. Sec. 1259. The execution creditor must pay the costs of these proceedings in the first instance; but in the cases provided for in sections 1253 and 1254 the amount so paid must be added as costs on execution, and collected accord- ingly. 6260. Who may select homestead, value of. Sec. 1260. Homesteads may be selected and claimed: 1. Of not exceeding five thousand dollars in value by any head of a family; 2. Of not exceeding one thousand dollars in value by any other person. 6261. Head of a family defined. Sec. 1261. The phrase "head of a family," as used in this title, includes "within its meaning: 1. The husband, when the claimant is a married person; 2. Every person who has residing on the premises with him or her and under his or her care and maintenance, either: 1. His or her minor child, or the minor child of his or her deceased wife or husband ; 2. A minor brother or sister, or the minor child of a deceased brother or sister; 3. A father, mother, grandfather, or grandmother; 4. The father, mother, grandfather or grandmother of a deceased husband or wife; 5. An unmarried sister, or any other of the relatives mentioned in this sec- tion who have attained the age of majority, and are unable to take care of or support themselves. [Amendment, approved March 30, 1874; Amendments 1873-4, 230; took effect July 1, 1874.^^' An Act to enable certain parties therein named to alienate or incumber homesteads. Approved March 25, 1874; 1873-4, 582. Alienation of homestead. Section 1. In case of a homestead, if either the husband or wife shall become hopelessly insane, upon api^lication of the husband or wife, not insane, to the probate court of the county in which said homestead is situated, and upon due proof of such insanity, the court may make an order permitting the husband or wife, not insane, to sell and convey, or mortgage, such homestead. Notice of apyplicalion. Sec. 2. Notice of the application for such order shall be given by publication of the same, in a newspaper published in the county in which such homestead is situated, if there be a newsj)aper published therein, once each week for three successive weeks, prior to the hearing of such application, and a copy of such notice shall also be served upon the nearest male relative of such insane hus- band or wife, resident in this state, at least three weeks prior to such applica- tion; and in case there be no such male relative known to the applicant, a copy (a) Original section: (ft) The original section, instead of the first Bubdl- Sec. i'lbi. The money paid to the claimant is entitled vision as above, had two subdivisions as foUowB: to all the protection against legal process and the vol- " 1. The husband; 2. The wife." untary disposition of the husband which the law gives to the homestead. 717 C2G1-G2G3 CIVIL CODE. of such notice shall be served upon the public administrator of the count}- in ■which such homestead is situated; and it is hereby made the duty of such public administrator, upon being served with a copy of such notice, to appear in court and see that such application is made in good faith, and that the pro- ceedings thereon are fairly conducted. P Hill on. Sec. 3. Thirty days before the hearing of any application under the provisions of this act, the applicant shall present and file in the court in which such appli- cation is to be heard, a petition for the order mentioned in the first section of this act, subscribed and sworn to by the applicant, setting fortJi the name and age of the insane husband or wife; the number, age, and sex of the children of such insane husband or wife; a description of the premises constituting the homestead; the value of the same; the county in which it is situated; and such facts in addition to that of the insanity of the husband or wife relating to the circumstances and necessities of the applicant and his or her family, as he or she may rely upon in support of the petition. Order and effect. Sec. 4. If the court shall make the order provided for in the first section of this act, the same shall be entered upon the minutes of the court, and there- after an}' sale, conveyance, or mortgage made in pursuance of such order, shall be as valid and effectual as if the property affected thereby was the absolute property of the person making such sale, conveyance, or mortgage, in fee simi)le. Fees. Sec. 5. For all services rendered by any public administrator, under the pro- visions of this act, he shall be allowed a fee not exceeding twenty dollars, to be fixed by the court, and the same shall be taxed as costs against the jDerson making api^lication for the order herein provided for. Sec. 6. All acts and parts of acts in conflict with the provisions of this act are hereby repealed. Sec. 7. This act shall take effect and be in force from and after its passage. CHAPTER II. HOMESTEAD OF THE HEAD OF A FAMILY. 6262. Mode of selection. Sec. 12G2. In order to select a homestead, the husband or other head of a family, or in case the husband has not made such selection, the wife must execute and acknowledge, in the same manner as a grant of real property is acknowledged, a declaration of homestead, and file the same for record. [Amendmnd , approved March 30, 1874; Amendmenlti 1873-4, 230; look effect July 1, 1874.*=" 6263. Di'chiratinn, v:hat to contain. Sec. 1203. The declaration of homestead must contain: 1. A st^itement, showing that the person making it is the head of a family; or, when the declaration is made by the wife, showing that her husband has not made such declaration, and that slie therefore makes the declaration for their joint benefit; 2. A statement that the person making it is residing on the premises, and claims them as a homestead; (a) Orlfrinal Bection: Bteacl, must execute and acknowledge. In the Bame Sec. 1M2. Tho liuKband and wife-, or either of them, manner as a grant of real property is acknowledged, a or other head of u family, in the selection of the home- declaration of homestead. 718 WILLS. G2G3-G270 3. A description of the premises; 4. An estimate of their actual cash value. [Amendment, approved March 30, 1874; Amendments 1873-4, 231; took effect July 1, 1874. "» 6264. Declaration must be recorded. Sec. 1264. The declaration must be recorded in the office of the recorder of the county in which the land is situated. 6265. Homestead right, when it attaches. Sec. 12G5. From and after the time the declaration is filed for record, the premises therein described constitute a homestead. If the selection was made by a married person from the community property, the land, on the death of either of the spouses, vests in the survivor, subject to no other liability than such as exists or has been created under the provisions of this title; in other cases, upon the death of the person whose property was selected as a homestead, it shall go to his heirs or devisees, subject to the power of the probate court to assign the same for a limited period to the family of the decedent; but in no case shall it be held liable for the debts of the owner, except as provided in this title. [Amendment, approved March 30, 1874; Amendments 1873-4, 231; took effect July 1, 1874.'''> CHAPTER III. HOMESTEAD OF OTHER PERSONS. 6266. Mode of selection . Sec. 1266. Any person other than the head of a family, in the selection of a homestead, must execute and acknowledge, in the same manner as a grant of real property is acknowledged, a " declaration of homestead." 6267. Declaration of homestead. Sec 1267. The declaration must contain everything required by the second, third and fourth subdivisions of section 1263, 6263. Declaration must be 7-ecorded. Sec 1268. The declaration must be recorded in the office of the county re- corder of the county in which the land is situated. 6269. Effect of fling for record the declaration of homestead. Sec 1269. From and after the time the declaration is filed for record, the land described therein is a homestead. TITLE VI. Chapter I. Execution and Revocation of Wills 6270 II. Interpretation of Wills 6317 III. General Provisions Relating to Wills 6357 CHAPTER I. EXECUTION AND REVOCATION OP WILLS. 6270. Who may make a will. Sec 1270. Every person over the age of eighteen years, of sound mind, may, (a) Original section: filed for record, the land therein described is a home- Sfc.12G3. The "declaration of homestead" must con- stead; and if the declaration was made by a married tain: 1. A statement of the facts that show the person person, the land is thereafter by the spouses held in making it to be the head of afamily; 2. Astatement joint tenancy, and on the d 6274. What may pass by xoill. Sec 1274. Evexy estate and interest in real or personal property', to which heirs, husband, widow, or next of kin might succeed, may be disposed of by will, except as otherwise provided in sections 1401 and 1402. 6275. 117(0 may take by will. Sec 1275. A testamentary disj)osition may be made to any person callable by law of taking the proj)erty so disposed of, except corporations other than those formed for scientific, literary, or solely educational purposes, cannot take under a will, unless expressly authorized by statute. [Amendment, approved Januai'y 29, 1874; Amendments 1873-4, 275; took effect from passage.'-"^ 6276. Written xoill, how to be executed. Sec 127G. Every will, other than a nuncuj)ative will, must be in writing; and every will, other than an olographic Avill, and a nuncupative will, must be executed and attested as follows: 1. It must be subscribed at the end thereof by the testator himself, or some person in his presence and by his direction must subscribe his name thereto; 2. The subsci-ijition must be made in the jiresence of the attesting witnesses, or be acknowledged by the testator to them, to have been made by him or by his authority; 3. The testator must, at the time of subscribing or acknowledging the same, declare to the attesting witnesses that the instrument is his will; and, 4. There must be two attesting witnesses, each of whom must sign his name as a witness, at the end of the will, at the testator's request, and in his presence. 6277. Definition of an olographic will. Sec. 1277. An olographic will is one that is entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of this state, and need not be witnessed. 6278. Witness to add r-esidence. Sec. 1278. A witness to a written will must write, with his name, his place of residence; and a person who subscribes the testator's name, by his direction, must write his own name as a witness to the will. But a violation of this section does not affect the validity of the will. (a) Repealed section: (c) Original section: Sec. 1271. A i)erson having any insane delusion is Sk<:. 127.5. A tcstmiientaiT disposition may be made incompetent to make a will. to any ijersou callable by law of taking tbe property so (6) Tbe original section differed in tbe lai^t sen- disposed of, except that no corporation can take under tence, which was as follows: "Her will must be at- a will, uulesB exin-essly authorized by statute so to tested, witnessed, and jjroved in like manner as all take, other ■vs-ills." 720 WILLS. 6279-6288 6279. Mutual will. Sec. 1279. A conjoint or mutual will is valid, but it may be revoked by any of the testators, in like manner with any other will. 6280. Competency of subscribing ivifness. Sec. 1280. If the subscribing witnesses to a will are competent at the time of attesting its execution, their subsequent incompetency, from whatever cause it may arise, does not prevent the jorobate and allowance of the Avill, if it is other- wise satisfactorily proved. 6281. Conditional will. Sec 1281. A will, the validity of which is made by its own terms conditional, may be denied probate, according to the event, with reference to the condition. 6282. Gifts to subscribing witnesses void. Sec. 1282. All beneiicial devises, legacies and gifts whatever, made or given in any will to a subscribing witness thereto, are void, unless there are two other competent subscribing witnesses to the same; but a mere charge on the estate of ^the testator for the payment of debts does not jprevent his creditors from being competent witnesses to his will. 6283. Witness, ivho is devisee, rights of. Sec. 1283. If a witness, to whom any beneficial de\dse, legacy or gift, void by the preceding section, is made, would have been entitled to any share of the estate of the testator, in case the will should not be established, he succeeds to so much of the share as would be distributed to him, not exceeding the devise or bequest made to him in the will, and he may recover the same of the other devisees or legatees named in the will, in proportion to and out of the parts devised or bequeathed to them. [Amendment, approved March 30, 1874; Amend- ments 1873-4, 232; took effect July 1, 1874.''''' 6284. [Sec. 1284"" was repealed by act approved March 30, 1874; Amendments 1873-4, 232; took effect July 1, 1874.J 6285. Will made out of state. Sec 1285. No will made out of this state is valid as a will in this state, unless executed according to the provisions of this chapter. [Amendment, ap- proved March 30, 1874; Amendments 1873-4, 232; took effect July 1, 1874.^''' 6286. [Sec 1286"^' was repealed by act approved March 30, 1874; Amendments 1873-4, 232; took effect July 1, 1874. J 6287. Pkcpublication by codicil. Sec 1287. The execution of a codicil, referring to a previous will, has the effect to republish the will, as modified by the codicil. 6288. Nuncupative loill, liow to be executed. Sec 1288. A nuncupative will is not required to be in writing, nor to be declared or attested with any formalities. (a) Original section: (c) Original section: Sec. 12fca. If a witness, to whom any beneficial de- Sec. 12bo. No will or revocation is valid unless exe- vise, legacy, or gift, is made or given, would have been cuted either according to the provisions of this chap- entitled to any share of the estate of the testator, in ter, or according to the law of the place in which case the will is not established, he succeeds to so it was made, or in which the testator was at the time much of the share as would be distributed to him, not domiciled, exceeding the devise or bequest made to him in the (d) Kejiealed section: will; ana he may recover the same of the devisees or Sec. 12o6. Whenever a will, or a revocation thereof, legatees uamed in the will, in proportion to and out of is duly executed according to the law of the place in the xjarts devised or bequeathed to them. which the same was made, or in which the testator was (b) Kejjealed section: at the time domiciled, the same is regulated, as to the Sec. VMi. A will of real or ijersonal property, or both, validity of its execution, by the law ol such place, not- *T a revocation thereof, made out of tnis state by a per- withstanding that the testator subsequently changed Bon not having his domicile in this state, is as valid, his domicile to a place by the law of which such will when executed according to the law of the x^lace in would be void, which the same was made, or in which the testator was at the time domiciled, as if it were made in this state, and according to the provisions of this chapter. 46 721 6289-6296 CIYIL CODE. 6289. BequisUes of valid nuncupative ivill. Sec. 1289. To make a uuncupative will valid, and to entitle it to be admitted to i^robate, the following requisites must be observed: 1. The estate bequeathed must not exceed in value the sum of one thousand dollars; 2. It must be proved by two witnesses who were present at the making thereof, one of whom was asked by the testator, at the time, to bear witness that such was his will, or to that effect; 3. The decedent must, at the time, have been in actual military service in the field, or doing duty on shijjboard at sea, and in either case in actual contem- plation, fear, or peril of death; or the decedent must have been, at the time, iu expectation of immediate death from an injury received the same day. [Amoidment, approved March 30, 187J:; AmendmetUs 1873-4, 233; look effect July 1, 1874.'^> 6290. Proof of nuncupative wills. Sec. 1290. No proof must be received of any nuncupative will, unless it is offered within six months after speaking the testamentary words, nor unless the words, or the substance thereof, were reduced to writing within thirty da3's after they were spoken. 6291. Probate of nuncupative wills. Skc. 1291. No probate of any nuncupative will must be granted for fourteen days after the death of the testator, nor must any nuncupative will be at any time proved, unless the testamentary words, or the substance thereof, be first committed to writing, and jJi'ocess issued to call in the widow, or other persons interested, to contest the probate of such will, if they think proper. 6292. Written will, how revoked. Sec. 1292. Except in the cases in this chapter mentioned, no written will, nor any part thereof, can be revoked or altered otherwise than: 1. B}' a written will, or other writing of the testator, declaring such revoca- tion or alteration, and executed with the same formalities with Avhich a will should be executed by such testator; or, 2. By being burnt, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking the same, by the testator himself, or by some person in his presence and by his direction. 6293. Ecidence of revocation. Sec. 1293. When a will is canceled or destroyed by any other person than the testator, the direction of the testator, and the fact of such injury or destruc- tion, must be proved by two witnesses. 6294. [Sec 1294"" was repealed by act approved March 30, 1874; Amendments 1873-4, 233; took effect July 1, 1874.] 6295. Jicvocalion of duplicate. Sec. 1295. The revocation of a Avill, executed in duplicate, may be made by revoking one of the duplicates. 62C6. Pcvocation by sabsfquent will. Sec. 1296. A prior will is not revoked by a subseqiient will, unless the latter (n) The original section lia (aj The original section, insUad of " nnlesB the contrary," had the words " if it." 724 TVILLS. 6313-€325 6313. Eentriction on power of device to cJuirUable rises. Szc. 1313. No estate, real or personal, shall be bequeathed or devised to anv charitable or benevolent society, or corporation, or to any person or persons in tnist for charitable uses, except the same be done by will duly executed at least thiiiy days before the decease of the testator; and if so made, at least thirti.- days prior to such death such devise or legacy, and each of them, shall be valid; provided, that no such devises or l>equests shall collectively exceed one third of the estate of the testator leaving legal heirs, and in such case a pro rata deduction from such devises or bequests shall be made so as to reduce the aggiegate thereof to one third of such estate; and all dispositions of property made contrary hereto shall be void, and go to the residuary legatee or devisee, next of kin, or heirs, according to law. [Xew section, approved March 18, 1874; AmendrnenU 1873-4, 275; iooJc effect from passage. CHAPTER n. IXTEEPBETATIOX OF WILLS, AND EFFECT OF TAPJOrS PEOTISIOXS. 6317. Testator's intention to be carried out. Sec. 1317. A will is to be construed according to the intention of the testa- tor. "Where his intention cannot have effect to its full extent, it must have effect as far as possible. 6318. Intention to be ascertained from the will. Sec. 1318. In case of uncertainty arising upon the face of a will, as to the application of any of its provisions, the testator's intention is to be ascertained from the words of the will, taking into view the circumstances under which it was made, exclusive of his oral declarations. 6319. Bides of interpretation. Sec. 1319. In interpreting a will, subject to the law of this state, the rules l^rescribed by the following sections of this chapter are to be observed, unless an intention to the contrary clearly appears. 6320. Several instruments are to be taken together. Sec. 1320. Several testamentary instruments, executed by the same testator, are to be taken and construed together as one instrument. 6321. Hormonizing various parts. Sec. 1321. All the parts of a will are to be construed in relation to each other, and so as, if possible, to form one consistent whole; but where several parts are absolutely irreconcilable, the latter must prevail- 6322. In what case devise not affected. Sec 1322. A clear and distinct devise or bequest cannot be affected by any reasons assigned therefor, or by any other words not equally clear and distinct, or by inference or argument from other parts of the wdl, or by an inaccurate recital of or reference to its contents in another part of the wiU. 6323. When ambiguous or doubtful. Sec. 1323. "WTiere the meaning of any part of a will is ambiguous or doubt- ful, it may be explained by any reference thereto, or recital thereof in another part of the will. 6324. Words taken in ordinary sense. Sec. 1324. The words of a wiQ are to be taken in their ordinary and gram- matical sense, unless a clear intention to use them in another sense can be col- lected, and that other can be ascertained. 6325. TTortfe to receive an op^erative construction. Sec. 1325. The words of a will are to receive an interpretation which will 725 6325-G336 CIYIL CODE. give to eveiT expression some effect, ratber than one wliicli will render any of the expressions inoperative. 6326. Intestacy to he avoided. Skc. 132G. Of two modes of interpreting a will, tliat is to be preferred which will i^revent a total intestacy. 6327. Effect of technical ivords. Sec. 1327. Technical words in a will are to be taken in their technical sense, unless the context clearly indicates a contrary intention. 6328. Technical woi^ds not necessary. Sec. 1328. Technical words are not necessary to give effect to any species of dis]iosition by a will. 6329. Certain tcords not rtecessary to jjass a fee. Sec 1329. The term " heirs," or other words of inheritance, are not requisite to devise a fee, and a devise of real projoerty passes all the estate of the testa- tor, unless otherwise limited. 6330. Power to devise, hoiv executed by tey^ms of iviU. Sec. 1330. Real or personal property embraced in a power to devise, passes by a will jmrporting to devise all the real or personal property of the testator. 6331. Devise or bequest of all real or all person aVpropert y , or both. Sec. 1331. A devise or bequest of all the testator's real or personal property, in express terms, or in any other terms denoting his intent to dispose of all his real or personal jiroperty, passes all the real or personal property which he was entitled to dispose of by will at the time of his death. 6332. Devise of residue, ichaf jyasses. Sec 1332. A devise of the residue of the testator's real property passes all the real property which he was entitled to devise at the time of his death, not otherwise effectually devised by his will. [Amendment, aj^i^roved March 30, 1874; Amendments 1873-4, 234; took effect July 1, 1874.'*' 6333. Same. Sec 1333. A bequest of the residue of the testator's personal property, j^asses all the personal property which he was entitled to bequeath at the time of his death, not otherwise effectually bequeathed by his will. [Amendment, approved MarchZi), 1874; Amendments 1^1^-4:, 234; took effect July 1, 1874.<'" 6334. "Heirs," " relatives," " issue," "descendants," etc. Sec. 1334. A testamentary disposition to "heirs," "relations," "nearest relations," "representatives," "legal rejiresentatives," or "personal represent- atives," or "famil}^," "issue," "descendants," "nearest" or "next of kin" of any person, without other words of qualification, and when the terms are used as words of douation, and not of limitation, vests the property in those who would be entitled to succeed to the jnoperty of such person, according to the provisions of the title on succession, in this code. 6335. Words of donation and of limitation. Sec 1335. The terms mentioned in the last section are used as words of dona- tion, and not of limitation, when the proiierty is given to the person so des- ignated, directly, and not as a qualification of an estate given to the ancestor of such person. 6336. 7b what lime rrnrds refer. Sec 1330. AVords in a will referring to death or survivorship, simply, relate to the time of the testator's death, unless possession is actually posti)oned, when they must be referred to the time of possession. (a) The original H'-ction, after " teBtutor's," liutl the (ft) The origlnnl Bcction, after " testator's," had the words " estate, x^roiierty, or." words " estate, iiroperty, or." 726 WILLS. 6337-6348 6337. DeviHe or bequest to a class. Sec. 1337. A testamentary disposition to a class includes every person an- swering- the description at the testator's death; but when the possession is post- poned to a future jjeriod, it includes also all persons coining within the descrip- tion before the time to which possession is postponed. 6338. WJum conversion takes effect. Sec 1338. When a will directs the conversion of real property into money, such property and all its proceeds must be deemed personal property from the time of the testator's death. 6339. When child born after testator's death takes under ivill. Sec. 1339. A child conceived before, but not born until after a testator's death, or any other period when a disposition to a class vests in right or in possession, takes, if answering to the description of the class. 6340. Mistakes and omissions. Sec. 1340. When, appljdng a will, it is found that there is an imperfect de- scription, or that no person or property exactly answers the description, mis- takes and omissions must be corrected, if the error appears from the context of the will or from extrinsic evidence; but evidence of the declarations of the tes- tator as to his intentions cannot be received. 6341. When devises and bequests vest. Sec. 1341. Testamentary dispositions, including devises and bequests to a person on attaining majority, are presumed to vest at the testator's death. 6342. When cannot be divested. Sec 1342. A testamentary disposition, when vested, cannot be divested unless upon the occurrence of the precise contingency prescribed by the testator for that purpose. 6343. Death of devisee or legatee, before testator. Sec 1343. If a devisee or legatee dies during the lifetime of the testator, the testamentary disposition to him fails, unless an intention appears to substitute some other in his place, except as provided in section thirteen hundred and ten. [Amejidment, approved March ?>0, 1874; Amendmentsl^l^-4:, 234; took effect July 1, 1874. 6344. Interests in remainder are not affected. Sec. 1344. The death of a devisee or legatee of a limited interest before the testator's death does not defeat the interests of persons in remainder, who sur- vive the testator. 6345. Conditional devises and bequests. Sec. 1345. A conditional disj)osition is one which depends upon the occur- rence of some uncertain event, by which it is either to take effect or be de- feated. 6346. Condition precedent, what. Sec 1346. A condition precedent in a will is one which is required to be ful- filled before a particular disposition takes effect. 6347. Effect of condition precedoit. Sec 1347. Where a testamentary disposition is made ui)on a condition pre- cedent, nothing vests until the condition is fulfilled, except where such fulfill- ment is impossible, in which case the disposition vests, unless the condition was the sole motive thereof, and the impossibility was unknown to the testator, or arose from an unavoidable event subsequent to the execution of the will. 6348. Conditions precedent, when deemed performed. Sec 1348, A condition j)recedent in a will is to be deemed performed when 727 6348-6359 CIVIL CODE. the testator's intention has been substantially, though not literally, complied with. 6349. Conditions suhf^equent, what. Sec. 1349. A couclition subsequent is where an estate or interest is so given as to vest immediately, subject only to be divested hj some subsequent act or event. 6350. Devisees, etc., fake as tenants in common. Sec. 1350. A devise or legacy given to more than one person vests in them as owners in common. 6351. Advancements, when ademptions. Sec 1351. Advancements or gifts are not to be taken as ademptions of gen- eral legacies, unless such intention is expressed by the testator in writing. CHAPTER III. GENERAL PEOVISIONS. 6357. Nature and designation of legacies. Sec. 1357. Legacies are distinguished and designated, according to their nature, as follows: Specific. 1. A legacy of a particular thing, specified and distiuguished from all others of the same kind belonging to the testator, is specific; if such legacy fails, resort cannot be had to the other property of the testator. Dejnonsfrative. 2. A legacy is demonstrative when the particular fund or personal property is pointed out from which it is to be taken or paid; if such fund or property fails, in whole or in part, resort may be had to the general assets, as in case of a general legacy. Annuities. 3. An annuity is a bequest of certain specified sums periodically; if the fund or property out of which they are payable fails, resort may be had to the general assets, as in case of a general legacy. Besiduary. 4. A residuary legacy embraces only that which remains after all the bequests of the will are discharged. General. 5. All other legacies are general legacies. 6358. Propertij of intestate chargeable with debts. Six'. 1358. When a person dies intestate, all his property, real and personal, without any distinction between them, is chargeable with the payment of his debts, except as otherwise provided in this code and the Code of Civil Proced- ure. [Amendment, approved March 30, 1874; Amendments 1873-4, 234; look efect July 1, 1874.^''> 6359. Order of resort to property for payment of debts. Sec. 1359. The i>roperty of a testator, except as otherwise si:)ecially provided for in this code, and the Code of Civil Procedure, must be resorted to .for the payment of debts, in the following order: (a) Orif^inal Hrotlon: of Ci^nl Proceflure, anfl fxeiiipt from exopution therein, SKf; i:i.'>H. When a person dicK intestate, his property, in to Ije resorted to, iu tlie following order, in piiyiiient except Huch iiHiH otherwise disposed of under this code, of debts: 1. Personal property; 2. Keal property] other and under (Jbapter V, of Title XI, of Part III, of the Code than estates of freehold ; 3. EstateB of freehold. 728 WILLS. 6359-6365 1. The property wliicli is expressly appropriated Ly the Avill for the payment of the debts; 2. Projierty not disposed of by the will; 3. Property which is devised or bequeathed to a residuary legatee: 4. Proj)erty which is not specifically devised or bequeathed; and, 5. All other property ratably. Before any debts are paid, the expenses of the administration and the allowance to the family must be paid or provided for. [Amendment, approved March 30, 1874; Amendments 1873-4, 234; took effect July 1, 1874.^''> 6360. Order of resort to property for payment of legacies. Sec. 13G0. The property of a testator, except as otherwise specially provided in this code and the Code of Civil Procedure, must be resorted to for the pay- ment of legacies, in the following order: 1. The property which is expressly appropriated by the will for the payment of the legacies; 2. Property not disposed of by the will; 3. Proj)erty which is devised or bequeathed to a residuary legatee; 4. Property which is [not] specifically devised or bequeathed. [Amendment, approved March 30, 1874; Amendments 1873-4, 235; took effect July 1, 1874.^"^ 6361. Same. Sec. 1361. Legacies to husband, widow, or kindred of any class, are charge- able only after legacies to persons not related to the testator. 6362. Abatement. Sec. 1362. Abatement takes place in any class only as between legacies of that class, unless a different intention is expressed in the will. 6363. Specific devises and legacies. Sec 1363. In a specific devise or legacy, the title j^asses by the will, but pos- session can only be obtained from the personal representative; and he may be authorized by the judge of the probate court to sell the property devised and bequeathed, in the cases herein provided. 6364. Heir's conveyance good, unless ivill is proved within four years. Sec 1364. The rights of a purchaser or incumbrancer of real property, in good faith and for value, derived from any person claiming the same by succes- sion, are not impaired by any devise made by the decedent from whom succes- sion is claimed, unless the instrument containing such devise is duly proved as a will, and recorded in the office of the clerk of the probate court having juris- diction thereof, or unless written notice of such devise is filed with the clerk of the county where the real property is situated, within four years after the devisor's death. 6365. Possession of legatees. Sec 1365. AVhere specific legacies are for life only, the first legatee must sign and deliver to the second legatee, or, if there is none, to the personal represent- ative, an inventory of the property, expressing that the same is in his custody for life only, and that, on his decease, it is to be delivered and to remain to the (a) Original section: fonowing property, ratably: real property, devised Sec. 1S59. The property of a testator, with the excep- without being charged with debts or legacies, and tion specified in the last section, is to be resorted to, in specific and demonstrative legacies ; 6. Personal prop- the fpUowing order, for the payment of debts and lega- erty expressly exempted in the will, cies: 1. Personal property,exceptiug such as is expressly (6) Original section: exempted in the will; 2. Real property expressly devised Seo. 1S60. In the application of the personal property to pay debts or legacies, where the personal property is of a decedent to the payment of debts, legacies must exempted in the will, or where the personal property be charged in the following order, unless a different •which is not exempted is insufacient; 3. Real property intention ig expressed in the will: 1. Residuary lega- •which is not effectually devised; 4. Property, real or cies; 2. General legacies; 3. Legacies given tor a valu- personal, charged with debts or legacies; but though able consideration, or for the relinquishment of some real property is charged with the payment of legacies, right or interest; 4. Specific and demonstrative lega- the personal property is not to be exonerated; 5. The cies. 729 6365-6377 CFV^IL CODE. use and for tlie benefit of tlie second legatee, or to the personal reiDresentative, as the case may be. 6366. Bequest of interest. Sec. 13GG. In case of a bequest of the interest or income of a certain sum or fund, the income accmes from the testator's death. 6367. Sathfadion of legacy. Sec. 13G7. A legacy, or a gift in contemplation, fear or peril of death, may be satisfied before death. [Amendment, approved March 30, 1874; Amendments 1873-4, 235; took efect July 1, 1874.<''> 6368. Legacies, xohen due. Sec. 1308. Legacies are due and deliverable at the expiration of one 3'ear after the testator's decease. Annuities commence at the testator's decease. 6369. Interest. Sec 13G9. Legacies bear interest from the time when they are due and paya- ble, except that legacies for maintenance, or to the testator's widow, bear inter- est from the testator's decease. 6370. Construction of these rvles. Sec 1370. The four preceding sections are in all cases to be controlled by a testator's express intention. 6371. Executor according to the tenor. Sec. 1371. Where it appears, by the terms of a will, that it was the intention of the testator to commit the execution thereof and the administration of his estate to any person as executor, such person, although not named executor, is entitled to letters testamentary in like manner as if he had been named executor. 6372. Poioer to ajjpoint is invalid. Sec 1372. An authority to an executor to ajjpoint an executor is void. 6373. Executor not to act till qualified. Sec. 1373. No person has any power, as an executor, until he qualifies, except that, before letters have been issued, he may pay funeral charges and take necessary measures for the preservation of the estate. 6374. Provisions as to reirjcations. Sec 1374. The provisions of this title in relation to the revocation of wills apply to all wills made by any testator living at the exj^iration of one year from the time it takes efi'ect. 6375. Execution and constrnetion of prior xvills not affected. Sec 1375. The provisions of this title do not impair the validity of the execu- tion of any will made before it takes effect, or affect the consti-uction of any such will, 6376. Lav) governing validity and interpretation, Sj:c. 137G. The validity and interpretation of wills, wherever made, are gov- erned, wlion relating to property within this state, by the laAV of this state. {Amt'ndment, approved March 30, 1874; Amendments 1873-4, 235; took efect July 1, 1874.'*" 6377. Lialjilily of beneficiaries for testator's obligations. Sec 1377. Those to whom property is given by will are liable for the obliga- tions of the testator in the cases and to the extent proscribed by the Code of Civil Procedure. (a) Thf orl|?inal Heetion did not have the -words " be- and intcrprctntion of wills aro governed, when relating fore death." to real property witliiii this 8tat^^ by the law of this (h) Original section: state; when relating to personal property, by the law Sec. 137 (J. KxceiJt as otherwise provided, the validity of the testator's domicile. 730 SUCCESSION. G383-6386 TITLE VII. 6383. Succession defined. Skc. 1383. Succession is the coming- in of another to take the property of one who dies without disposing of it by will. 6384. Succession to estates of intestate. Sec. 1384. The property, Loth real and personal, of one who dies without disposing of it by will, passes to the heirs of the intestate, subject to the control of the probate court, and to the possession of any administrator apjDointed by that court, for the purposes of administration. [Amendment, approved March 30, 1874; Amendments 1873-4, 236; took effect July 1, 1874."'' 6385. [Sec. 1385^"' was repealed by act approved March 30, 1874; Amend- ments 1873-4, 236; took effect July 1, 1874. J 6386. Succession to and distHhution of property. Sec. 1386. When any person having title to any estate not otherwise limited by marriage contract, dies without disposing of the estate by will, it is succeeded to and must be distributed, unless otherwise expressly j^rovided in this code and the Code of Civil Procedure, subject to the payment of his debts, in the following manner : 1. If the decedent leave a surviving husband or wife, and only one child, or the lawful issue of one child, in equal shares to the surviving husband, or wife and child, or issue of such child. If the decedent leave a surviving husband or wife, and more than one child living, or one child living, and the lawful issue of one or more deceased children, one third to the surviving husband or wife, and the remainder in equal shares to his children, and to the lawful issue of any deceased child, by right of rejDresentation ; but if there be no child of the decedent living at his death, the remainder goes to all of his lineal descend- ants; and if all of the descendants are in the same degree of kindred to the decedent, they share equally, otherwise they take according- to the right of rei^'esentation. If the decedent leave no surviving husband or wife, but leave issue, the whole estate goes to such issue, and if such issue consists of more than one child living, or one child living, and the law^ful issue of one or more deceased children, then the estate goes in equal shares to the children living, or to the child living,, and the issue of the deceased child or children by right of representation; 2. If the decedent leave no issue, [and] the estate goes in equal shares to the surviving husband or wife, and to the decedent's father. If there be no father, then one half goes in equal shares to the brothers and sisters of the decedent, and to the children of any deceased brother or sister, by right of representation; if he leave a mother also, she takes an equal share w'ith the brothers and sisters. If decedent leave no issue, nor husband nor wife, the estate must go to his father; 3. If there be no issue, nor husband, nor wife, nor father, then in equal shares to the brothers and sisters of the decedent, and to the children of any (a) Original section: cedure; and, 3. To distribute any remaininf; property Sec. ]3si. The property, both real and personal, of among those entitled to succeed to the property of the any one who dies without disposingof itby will, passes, decedent, according to the provisions of this title, in the first instance, to the personal representative of (l>) liepealed section: Buch person as trustee: 1. To make the provision for Seo 1o85. The personal rejiresentative of a decedent, the surviving husband, or wife, or child, which is di- within the meaning of that phrase as used in the pre- rected by Title XI, of Part III, of the Code of Civil ceding section, is the duly qualified and acting execu- Procedure; 2. To apply the property to the paynnent of tor, administrator, or administrator with the wiU an- the debts of the decedent, according to the title on nexed, of the estate of the decedent, wills, and the provisions of the Code of Civil Pro- 731 C386-6388 CIYIL CODE. deceased brotlier or sister, by right of representation; if a mother survive, she takes an equal share with the brothers and sisters; 4. If the decedent leave no issue, nor husband, nor wife, nor father, and no brother nor sister is living at the time of his death, the estate goes to his mother, to the exclusion of the issue, if any, of deceased brothers or sisters; 5. If the decedent leave a surviving husband or Mdfe, and no issue, and no father, nor mother, nor brother, nor sister, the whole estate goes to the surviv- ing husband or wife; 6. If the decedent leave no issue, nor husband, nor wife, and no father, nor mother, nor brother, nor sister, the estate must go to the next of kin, in equal degree, exceiJting that when there are two or more collateral kindred, in equal degree, but claiming through different ancestors, those Avho claimed through the nearest ancestors must be preferred to those claiming through an ancestor more remote. However: 7. If the decedent leave several children, or one child and the issue of one or more children, and any such surviving child dies under age, and not having been married, all the estate that came to the deceased child by inheritance from such decedent, descends in equal shares to the other children of the same jjarent, and to the issue of any such other children who are dead, by right of rejDresentation; 8. If, at the death of such child, who dies under age, not having been mar- ried, all the other children of his parents are also dead, and any of them have left issue, the estate that came to such child by inheritance from his j^arents, descends to the issue of all other children of the same parent; and if all the issue are in the same degree of kindred to the child, they share the estate equally; otherwise, they take according to the right of rej^resentation; 9. If the decedent leave no husband, wife, or kindred, the estate escheats to the state, for the support of common schools. [Amendment, aj^i^roved March 30, 1874; Amendments 1873-4, 23G; took effect Julij 1, 1874.^^' 6387. lllefjltimate children to inherit in certain events. Sec. 1387. Every illegitimate child is an heir of the person who, in writing, signed in the presence of a competent witness, acknowledges himself to be the father of such child; and in all cases is an heir of his mother; and inherits his or her estate, in whole or in i:)art, as the case may be, in the same manner as if he had been born in lawful wedlock; but he does not represent his father or mother by inheriting any part of the estate of his or her kindred, either lineal or collateral, unless, before his death, his parents shall have intermarried, and his father, after such marriage, acknowledges him as his child, or adopts him into his family; in which case such child and all the legitimate children are con- sidered brothers and sisters, and on the death of either of them, intestate, and without issue, the others inherit his estate, and are heirs, as hereinbefore pro- vided, in like manner as if all the children had been legitimate; saving to the father and mother, respectively, their rights in the estates of all the children in like manner as if all had been legitimate. The issue of all marriages null in law, or dissolved by divorce, are legitimate. 6338. The mother is successor to illegitimate child. Six. 1388. If an illegitimate child, who has not been acknowledged or ado^jted Ijy his father, dies intestate, without lawful issue, his estate goes to his mother, or in case of her decease to her heirs at law. (a) The original section did not liave in the first sen- surviving husband or xnfe, but leave issue." In the tcn<-e the wurdK " unlewt otlii-rwine expreHwly provided second subdivision it did not have the reduudant in this cod"' and the Code of Civil Procedure." In the "and." Iheori^tinal section throughout had tlieiudic- flrst subdivision it did not have the last sentence com- ative " leaves " instead of the subjunctive " leave." zuencing with the words, " if the decedent leave no 732 SUCCESSION". C389-C398 6389. Degrees of kindred hoiv computed. Sec. 1389. The degree of kiudred is established by the number of gener- ations, and each generation is called a degree. 6390. Direct and collatercd conHancjuinity. Sec. 1390. The series of degrees forms the line; the series of degrees between l^ersons who descend from one another is called direct or lineal consanguinity; and the series of degrees between jjersons who do not descend from one another, but spring from a common ancestor, is called the collateral line or collateral consanguinity. 6391. Direct line descending , and direct line ascending. Sec. 1391. The direct line isdiA-ided into a direct line descending and a direct line ascending. The first is that which connects the ancestors w'ith those who descend from him. The second is that which connects a person Avith those from w^hom he descends. 6392. Degrees in direct line. Sec. 1392. In the direct line there are as many degrees as there are genera- tions. Thus, the son is, with regard to the father, in the first degree; the grandson in the second; and vice versa with regard to the father and grandfather toward the sons and grandsons. 6393. Degrees in collateral line. Sec. 1393. In the collateral line the degi-ees are counted by generations, from one of the relations up to the common ancestor, and from the common ancestor to the other relations. In such computation the decedent is excludedj the rela- tive included, and the ancestor counted but once. Thus, brothers are related in the second degree; uncle and nephew in the third degree; cousins-german in the fourth, and so on. 6394. Relatives of the half blood. Sec. 1394. Kindred of the half blood inherit equally with those of the whole blood in the same degree, unless the inheritance come to the intestate by descent, devise, or gift of some of his ancestors, in which case all those who are not of the blood of such ancestors must be excluded from such inheritance. 6395. Advancements constitute part of distrihidive share. Sec. 1395. Any estate, real or personal, given by the decedent in his lifetime, as an advancement to any child, or other lineal descendant, is a part of the estate of the decedent for the purposes of division and distribution thereof among his issue, and must be taken by such child, or other lineal descendant, toward his share of the estate of the decedent. 6396. Advancements, when too much, or not enough. Sec. 139G. If the amount of such advancement exceeds the share of the heir receiving the same, he must be excluded from any further portion in the di^dsion and distribution of the estate, but he must not be required to refund any part of such advancement; and if the amount so received is less than his share, he is entitled to so much more as will give him his full share of the estate of the decedent. 6397. What are advancements. Sec. 1397. All gifts and grants are made as advancements, if expressed in the gift or grant to be so made, or if charged in writing by the decedent as an advancement, or acknow^ledged in writing as such, by the child or other suc- cessor or heir. 6398. Valae of advancements, how determined. Sec. 1398. If the value of the estate so advanced is expressed in the con- veyance, or in the charge thereof made by the decedent, or in the acknowledg- 733 6398-6405 CIVIL CODE. ment of the parh' receiving- it, it must be held as of that value in the division and distribution of the estate; otherwise, it must be estimated according to its value when given, as nearly as the same can be ascertained. 0399. When heir, advanced to, dies before decedent. Sec. 1399. If any child, or other lineal descendant receiving advancement, dies before the decedent, leaving issue, the advancement must be taken into consideration in the division and distribution of the estate, and the amount thereof must be allowed accordingly by the representatives of the heirs receiv- ing the advancement, in like manner as if the advancement had been made dii-ectly to them. 6400. Inheritance of husband and wife from each other. Sec. liUO. The provisions of the preceding sections of this title, as to the inheritance of the husband and wife from each other, apply only to the separate proj^erty of the decedents. 6401. CommiLnity property, on death ofxmfe. Sec. 1401. Upon the death of the wife, the entire community property, with- out administration, belongs to the surviving husband, except such jDortion thereof as may have been set apart to her by judicial decree, for her support and maintenance, which portion is subject to her testamentary disposition, and in the absence of such disposition, goes to her descendants, or heirs, exclusive of her husband. [Amendment, approved March 30, 1874; Amendments 1873-4, 238; too/c effect July 1, 1874.^^> 6402. Distribution of common property on death of the husband. Sec. 1402. Upon the death of the husband, one half of the community property goes to the surviving wife, and the other half is subject to the testa- mentary disposition of the husband, and in the absence of such disposition, goes to his descendants, equall}', if such descendants are in the same degree of kindred to the decedent; otherwise, according to the right of representation; and in the absence of both such disposition and such descendants, is subject to distribution in the same manner as the separate property of the husband. In case of the dissolution of the community by the death of the husband, the entire community jDroperty is equally subject to his debts, the family allowance, and the charges and expenses of administration. 6403. lidieritance by representation. Sec. 1403. Inheritance or succession "by right of representation" takes place when the descendants of any deceased heir take the same share or right in the estate of another person that their parents would l)ave taken if living. Posthumous children are considered as living at the death of their parents. 6404. Alienn may inherit, ivhen, and how. Sec. 1404. Resident aliens may take in all cases by succession as citizens; and no person capable of succeeding under the provisions of this title is pre- cluded from such succession by reason of the alienage of any relative; but no non-resident foreigner can take by succession unless he appears and claims ^uch succession within five years after the death of the decedent to whom he claims succession. 6405. When auccesaion not claimed property to be ^old, and proceeds deposited. Sec. 1405, When succession is not claimed as iirovidcd in the joreceding sec- tion, the di.strict court, on information, must direct the attorney-general to («) Original Bcotlon: Beparnte and apart from her, the hnlf iif tliP community Sec. ItOi rpon the; dc-ith of the wife, the f-ntire property, subject to the paynieut of the ilebts c liiir^'e- couiiiiuiiity prujierty, witln'iit ndininistration, belontjB aljle to it, is at her tcKtamentary disposition, and in the to the Biin'iviuli liuKbaiid, if lie hli;ill not have aban- absence of such dispofiition goes to her descendants or doned and lived separate Bnrocc«'d ],\ ,-\\\\ !i<-ti<>n to mlh-ct such charges. Work. Sec. 20. The work must be executed under the direction and in the inaniH-r prescribed b}^ the board of trustees. Accounts. Sec. 21. The board must keep accurate accounts of all ex])Oiiditurf"s, wliidi accounts, and all contracts that may be made by them, are open to the inspec- tion of the board of supervisors, and every person interested. Property may be acquired. Sec. 21. The trustees may acquire, by purchase, all property necesKary to caiTy out and maintain the system of irrigation or drainage provided for. Condemnation. Sec. 22. The trustees may acquire by condemnation: 1. The right to the use of any running Avater not already used for culinary or domestic purposes, or for irrigating, milling, or mining puri)oses; 2. The right of way for canals, drains, embankments, and other work neco.s- Bary, and may take materials for the construction, maintenance, and repair thereof, from lands outside of as well as within the limits of the district. Pi^actice. Sec. 23. The provisions of Title VII, Part III, of the Code of Civil Procedure are applicable to, and the condemnation herein provided for must be made thereunder. Irrigation or drainage by individual owners. Sec 24. "Whenever any district susceptible of one mode of irrigation or drain- age is entirely owned by parties who desire to irrigate or drain the same, and to manage the irrigation or drainage without the intervention of trustees or tlie establishment of by-laws, they may file the petition j^rovided for in sections one and two, and must state therein that the}^ intend to undertake the irrigation or drainage on their own responsibility. Privileges of owners. Sec. 25. If the petition is granted, the owners of the lands have all the rights, immunities, and privileges granted to boards of trustees, and in all proceedings the names of the owners may be used instead of the names of trustees. Not applicable to certain counties. 1 Sec 26. This act shall not be so construed as applying to the counties of I Fresno, Kern, Tulare, and Yolo. Sec 27. This act, and the provisions of the title of the Code of Civil Pro- cedure herein referred to, so far as proceedings under this act are to be had, shall be in force from and after the passage of this act. 739 6427-6428 CIVIL CODE. DIVISION THIRD. Part I. OBLIGATIONS IN GENERAL 6427 11. CONTRACTS 6549 III. OBLIGATIONS IMPOSED BY LAW 6708 IV. OBLIGATIONS ARISING FROM PARTICULAR TRANS- ACTIONS 6721 I>A.IIT I. OBLIGATIONS IN GENERAL. Title I. Definition of Obligations 6427 II. Interpretation of Obligations 6429 III. Transfer op Obligations 6457 IV. Extinction of Obligations 6473 TITLE I. definition of (Dblioation^. 6427. Ohligalion, what. Sec. 1427. An obligation is a legal duty, by "wbicli a person is bound to do or not to do a ceiiain thing. 6428. How created and enforced. Sec. 1428. An obligation arises either from : 1. The contract of the parties; or, 2. The operation of law. An obligation arising from oj^eration of law, may be enforced in the manner provided by law, or by civil action or proceeding. [Amendment, approved 3Iarch 30, 1874; Amendments 1873-4, 239; took effect July 1, 1874.^"' TITLE IL Intrrprctotion of (Oblioation^. Chapter I. General Rules of Interpretation 6429 II. Joint or Several Obligations 6430 III. CONLITIONAL OBLIGATIONS 6434 IV. Alternative Obligations 6448 (a) The original Bection did tot have the laBt eentence commenciug, " an obligation aribing from operation of law." 740 OBLIGATIONS. 6429-6439 CHAPTER I. GENERAL RULES OF INTERPRETATION. 6429. General rules. Sec. 1429. The rules which govern the interpretation of contracts are pre- scribed by Part II of this Division. Other obligations are interpreted by the same rules by which statutes of a similar nature are interpreted. CHAPTER II. JOINT OR SEVERAL OBLIGATIONS. 6430. Obligations, joint or several, etc. Sec. 1430. An obligation imposed upon several persons, or a right created in favor of several persons, may be : 1. Joint; 2. Several; or, 3. Joint and several. 6431. When joint. Sec. 1431. An obligation imposed upon several persons, or a right created in favor of several persons, is presumed to be joint, and not several, except in the special cases mentioned in the title on the interpretation of contracts. This j)resumption, in the case of a right, can be overcome only by express words to the contrary. 6432. Contribution between joint parties. Sec. 1432. A j)arty to a joint, or joint and several obligation, who satisfies more than his share of the claim against all, may require a proportionate contribution from all the parties joined with him. CHAPTER III. CONDITIONAL OBLIGATIONS. 6434. Obligation, when conditional. Sec. 1434. An obligation is conditional, when the rights or duties of any party thereto depend upon the occurrence of an uncertain event. 6435. Conditions, kinds of. Sec. 1435. Conditions may be precedent, concurrent, or subsequent. 6436. Conditions precedent. Sec. 1436. A condition precedent is one which is to be performed before some right dependent thereon accrues, or some act dependent thereon is per- formed. 6437. Conditions concurrent. Sec. 1437. Conditions concurrent are those which are mutually dependent, and are to be performed at the same time. 6438. Conditions subsequent. Sec. 1438. A condition subsequent is one referring to a future event, upon the happening of which the obligation becomes no longer binding uj^on the other party, if he chooses to avail himself of the condition. 6439. Per-formance, etc., of conditions , when essential. Sec. 1439. Before any party to an obligation can require another party to perform any act under it, he must fulfill all conditions precedent thereto im- posed upon himself; and must be able and offer to fulfill all conditions con- current so imposed upon him on the like fulfillment by the other pai'ty, except as provided by the next section. 741 Ci40-6459 CIVIL CODE. 6440. When performance, etc., excnsed. Sec. 1440. If a i^arty to an obligation gives notice to another, before the latter is in default, that he will not perform the same upon his part, and does not retract such notice before the time at which performance upon his part is due, such other party is entitled to enforce the obligation without previously performing or offering to perform any conditions upon his part in favor of the fonner party. 6441. Impossible or unlaicful conditions void. Sec 1441. A condition is a contract, the fulfillment of which is impossible or unlawful Avithin the meaning of the article on the object of contracts, or which is repugnant to the nature of the interest created by the contract, is void. 6442. Conditions involving forfeiture, how construed. Sec. 1442. A condition involving a forfeiture must be strictly interpreted against the party for whose benefit it is created. CHAPTER IV. ALTEKNATIVE OBLIGATIONS. 6448. Who has the right of selection. Sec. 1448. If an obligation requires the performance of one of two acts, in the alternative, the party required to perform has the right of selection, unless it is otherwise provided by the terms of the obligation. 6449. Bight of selection, how lost. Sec. 1449. If the party having the right of selection between alternative acts does not give notice of his selection to the other party within the time, if any, fixed by the obligation for that purpose, or, if none is so fixed, before the time at which the obligation oiight to be jDerformed, the right of selection passes to the other party. 6450. Alternatives indivisible. Sec 1450. The party having the right of selection betAveen alternative acts must select one of them in its entirety, and cannot select part of one and part of another without the consent of the other party. 6451. Nullity of one of alternative obligalioiis. Sec 1451. If one of the alternative acts required by an obligation is such as the law will not enforce, or becomes unlawful, or imj^ossible of performance, the obligation is to be interpreted as though the other stood alone. TITLE III. irran$fcr of ©bUoation^. 6457. Burden of oIAigation not transferable. Sec 1457. The burden of an obligation may be transferred with the consent of the paiiy entitled to its benefit, but not otherwise, except as provided by Hoctiun 1400. 6458. Bights arising out (f obligation transferable. Sec 1458. A right arising out of an obligation is the propei'ty of the person to whom it is due, and may be transferred as such. 6459. Kon-negotiabh instruments may be transferred . Skc. 1459. A non-negotiable wx'itten contract for the payment of money or 742 OBLIGATIONS. 6459-G467 personal property may be transferred by indorsement, in like manner with negotiable instruments. Such indorsement shall transfer all the rights of tl>e assignor under the instrument to the assignee, subject to all equities and defenses existing in favor of the maker at the time of the indorsement. 6460. Covenants running ivith land, what. Sec. 1460. Certain covenants, contained in grants of estates in real property, are appurtenant to such estates, and pass with them, so as to bind the assigns of thecovenantor and to vest in the assigns of the covenantee, in the same man- ner as if they had personally entered into them. Such covenants are said to run with the land. 6461. Wiiat covenants run loith land. Sec. 1461. The only covenants which run with the land are those specified in this title, and those which are incidental thereto. 6462. Same. Sec. 1462. Every covenant contained in a grant of an estate in real property, which is made for the direct benefit of the property, or some part of it then in existence, runs with the land. 6463. Same. Sec. 1463. The last section includes covenants "of warranty," "for quiet en- joyment," or for further assurance on the part of a grantor, and covenants for the jDaymeut of rent, or of taxes or assessments upon the land, on the part of a grantee. 6464. What coveyianis run tvith land wlien assigns are named. Sec. 1464. A covenant for the addition of some new thing to real property, or for the direct benefit of some part of the property not then in existence or annexed thereto, when contained in a grant of an estate in such property, and made by the covenantor expressly for his assigns or to the assigns of the cove- nantee, runs with land so far only as the assigns thus mentioned are concerned. 6465. Wlio are hound by covenants. Sec. 1465. A covenant running with the land binds those only who acquire the whole estate of the covenantor in some part of the property. 6466. Who are not. Sec. 1466. No one, merely by reason of having acquired an estate subject to a covenant running with the land, is liable for a breach of the covenant before he acquired the estate, or after he has parted with it or ceased to enjoy its benefits. 6467. Apportionment of covenants. Sec. 1467. "Where several persons, holding by several titles, are subject to the burden or entitled to the benefit of a covenant running with the land, it must be apportioned among them according to the value of the property subject to it held by them respectively, if such value can be ascertained, and if not, then according to their respective interests in point of quantity. TITLE lY. Citinctiou of (Olilioatiou^. Chapter I. Performance , 64 ( 3 II. Offer of Performance 6485 III. Prevention of Performance or Offer 6511 IV. Accord and Satisfaction G521 V. Novation ^^"^^ YI. Release 6541 743 6473-6479 CIVIL CODE. CHAPTEK I. PERFOEMANCE. 6473. Obligation extinguished by performance. Sec. 1473. Full perfoi-mance of an obligation by the party whose duty it is to perform it, or by any other person on his behalf, and with his assent, if accei^ted by the creditor, extinguishes it. 6474. Performance by one of several joint debtors. Sec. 1474. Performance of an obligation, by one of several persons who are jointly liable under it, extinguishes the liability of all. 6475. rerformance to one of joint creditors. Sec. 1475. An obligation in favor of several persons is extinguished by jjer- formance rendered to any of them, except in the case of a deposit made by owners in common, or in joint ownership, which is regulated by the title on deposit. 6476. Effect of directions by creditors. Sec. 147G. If a creditor, or any one of two or more joint creditors, at any time directs the debtor to perform his obligation in a particular manner, the obligation is extinguished by performance in that manner, even though the creditor does not receive the benefit of such performance. 6477. Partial performance. Sec 1477. A partial performance of an indivisible obligation extinguishes a corresponding proportion thereof, if the benefit of such performance is volun- tarily retained by the creditor, but not otherwise. If such partial performance is of such a nature that the creditor cannot avoid retaining it without injuring his own propei'ty, his retention thereof is not presumed to be voluntary. 6478. Payment, what. Sec 1478. Performance of an obligation for the delivery of money only, is called paj'ment. 6479. Application of act by rvay of performance or extinctions of obligation. Sec 1479. Where a debtor, under several obligations to another, does an act, by way of performance, in whole or in part, which is ecpially a2:)plicable to two or more of such obligations, such j^erformance must be api^lied as follows: 1 . If, at the time of performance, the intention or desire of the debtor that such performance should be ai:)plied to the extinction of any particular obliga- tion, be manifested to the creditor, it must be so applied; 2. If no such application be then made, the creditor, within a reasonable time after such performance, may apply it toward the extinction of any obliga- tion, performance of wliich was due to him from the debtor at the time of such perfurniance; except that if similar obligations were due to him, both individu- ally and as a trustee, he must, unless otherwise directed by the debtor, apply the performance to the extinction of all such obligations in equal proportion; and an ai)2)lication once made by the creditor cannot be rescinded without the consent of the debtor; 3. If noitlior party makes sucli ai:)plication within the time prescrilicd herein, the perforniaijce must be applied to the extinction of obligations in the follow- ing order; and, if there be more than one obligation of a particular class, to the extinction of all in that class ratably: 1. Of interest due at the time of the performance; 2. Of principal due at that time; 3. Of the obligation earliest in date of maturity; 744 OBLIGATIONS. G479-6492 4, Of an obligation not secured by a lien or collateral undertaking; 5. Of an obligation secured by a lien or collateral undertaking. [Amendment, approved March 30, 1874; Amendments 1^1^-4., 239; look efectJabj 1, 1874/'' CHAPTER II. OFFER OF PERFORMANCE. 6485. Obligation extinguished by offer of performance. Sec. 1485. An obligation is extinguished by an offer of jjerformance, made in conformity to the rules herein j^i'escribed, and with intent to extinguish the obligation. 6486. Offer of partial performance. Sec. 1486. An offer of partial j)erformance is of no effect. 6487. By tohom to be made. Sec. 1487. An offer of performance must be made by the debtor, or by some person on his behalf and with his assent. 6488. Offer of performance to xvhom, and lohere to be made. Sec. 1488. An offer of performance must be made to the creditor, or to any one of two or more joint creditors, or to a person authorized by one or more of them to receive or collect what is due under the obligation, if such creditor or authorized person is present at the place where the offer may be made; and, if not, wherever the creditor may be found. [Amendment, approved March 30, 1874; Amendments 1873-4, 240; took effect July 1, 1874.^"' 6489. Where offer may be made. Sec. 1489. In the absence of an express provision to the contrary, an offer of performance may be made, at the option of the debtor: 1. At any place appointed by the creditor; or, 2. "Wherever the person to whom the offer ought to be made can be found; or, 3. If such person cannot, with reasonable diligence, be found within this state, and within a reasonable distance from his residence or place of business, or if he evades the debtor, then at his residence or place of business, if the same can, with reasonable diligence, be found within the state; or, 4. If this cannot be done, then at any place within this state. 6490. When offset must be made. Sec. 1490. Where an obligation fixes a time for its performance, an offer of performance must be made at that time, within reasonable hom-s, and not before nor afterwards. 6491. Same. Sec 1491. Where an obligation does not fix the time for its performance, an* offer of performance may be made at any time before the debtor, upon a reason- able demand, has refused to perform. 6492. Compensation after delay in performance. Sec 1492. Where delay in performance is capable of exact and entire com- pensation, and time has not been expressly declared to be of the essence of the obligation, an offer of performance, accompanied with an offer of such com- pensation, may be made at any time after it is due, but without prejudice to any rights acquired by the creditor, or by any other person, in the meantime. (a) The original section did not have the words " in lateral undertaking; i. Of interest; 5. Of the obliga- ■whole or in part." and instead of the subjunctive tion earliest in date of maturity; 6. Of the obligation "must be" it had the indicative "is." The order of which it is most for the interest of the debtor to ex. api)lieatiou, provided for under the third subdivision, tinguish. was as follows: {'') The original section, instead of the concluding 1. Of an obligation due at the time of performance; clause " wherever the creditor may be found," had the 2. Of an obligation not voidable at the option of the words " then to a notarj- public." debtor; 3. Of an obligation secui-ed by a lien or col- 745 6493-6504 CIYIL CODE. 6493. Ojfer io he made in good faith. Sec. 1493. Au oifer of performance must be made in good faith, and in sucli manner as is most likeh', under the circumstances, to benefit the creditor. 6494. Conditional offer. Sec. 1494. An offer of pei'formance must be free from any conditions which the creditor is not bound, on his part, to perform. 6495. Ability and tvillingness essential. Sec. 1495. An offer of i:)erformance is of no effect if the person making it is not able and willing to perform according to the offer. 6496. Production of thing io he delivered not necessary. Sec. 1496. The thing to be delivered, if any, need not in any case be actually produced, ujDon an offer of j)erformance, unless the offer is accepted. 6497. Thing offered to he kej)t separate. Sec. 1497. A thing, when offered by way of performance, must not be mixed witli other things from which it cannot be separated immediately and without difficulty. 6498. Performance of condition j^recedent. Sec. 1498. When a debtor is entitled to the performance of a condition pre- cedent to, or concuiTent with, performance on his part, he may make his offer to depend upon the due performance of such condition. 6499. W7-itten receipts. Sec. 1499. A debtor has a right to require from his creditor a written receijDt for any i:)roperty delivered in performance of his obligation. 6500. Extinction of pecuniary ohligaiion. Sec. 1500. An obligation for the payment of money is extinguished by a due offer of payment, if the amount is immediately deposited in the name of the creditor, in some bank of deposit within this state, of good rej)ute, and notice thereof is given to the creditor. 6501. Objections io mode of offer. Sec. 1501. All objections to the mode of an offer of performance, which the creditor has an opportunity to state at the time to the person making the offer, and which could be then obviated by him, are waived by the creditor, if not then stated. 6502. Title to thing offered. Sec. 1502. The title to a thing duly offered in jierformance of an obligation passes to the creditor, if the debtor at the time signifies his intention to that effect. 6503. Custody of thing offered. Sec 1503. The person offering a thing, other than money, by way of per- formance, must, if he means to treat it as belonging to the creditor, retain it as a depositary for hire, until the creditor accepts it, or until he has given reason- able notice to the creditor that he will retain it no longer, and, if with reason- able diligence he can find a suitable depositary therefor, until he has deposited it with such person. 6504. Effect of offer on accessories of obligation. Sec 1504. An offer of payment or other performance, duly made, though tlie title to the thing offered be not transferred to the creditor, stops the running of interest on tlie obligation, and has the same effect upon all its incidents as a performance thereof. 746 OBLIGATIONS. 6505-6521 6505. Creditor's retention of thing ichich he refuses to accept. Sec. 1505. If anything is given to a creditor by way of perfonnance, which he refuses to accept as such, he is not bound to return it without demand; but if he retains it, he is a gratuitous depositary thereof. CHAPTEK III. PREVENTION OF PEKFORMANCE OR OFFER. 6511. What excuses performance, etc. Sec. 1511. The want of performance of an obligation, or of an offer of per- formance, in whole or in j^art, or any delay therein, is excused by the fpllowing causes, to the extent to which they operate : 1. AVhen such performance or offer is 2:)revented or delayed by the act of the creditor, or by the operation of law, even though there may have been a stipu- lation that this shall not be an excuse; 2. When it is jDrevented or delayed by an irresistible, superhuman cause, or by the act of jjublic enemies of this state or of the United States, unless the parties have expressly agreed to the contrary'; or, 3. "When the debtor is induced not to make it, by any act of the creditor in- tended or naturally tending to have that effect, done at or before the time at which such performance or offer may be made, and not rescinded before that time. 6512. Performance xohen prevented by creditor. Sec. 1512. If the j)erformance of an obligation be prevented by the creditor, the debtor is entitled to all the benefits which he would have obtained if it had been j^erformed by both parties. [Amendment, approved March 30, 1874; Amend- ments 1873-4, 240; took effect Julxj 1, 1874.<*^ 6513. [Sec. 1513*''' was repealed by act approved March 30, 1874; Amend- ments 1873-4, 240; took effect July 1, 1874.] 6514. Same. Sec. 1514. If the performance of an obligation is prevented by any cause excusing performance, other than the act of the creditor, the debtor is entitled to a ratable proportion of the consideration to which he would have been entitled upon full performance, according to the benefit which the creditor receives from the actual performance. 6515. Effect of refusal to accept performance before offer. Sec. 1515. A refusal by a creditor to accept performance, made before an offer thereof, is equivalent to an offer and refusal, unless, before performance is actually due, he gives notice to the debtor of his willingness to accept it. CHAPTER IV. ACCORD AND SATISFACTION. 6521. Accord, what. Sec. 1521. An accord is an agreement to accept, in extinction of an obligation, something different from or less than that to which the person agreeing to accept is entitled. [Amendment, approved March 30, 1874; Amendments 1873-4, 240; took effect July 1, 1874."=^ (a) Tlie original section, instead of " if it had been retain whatever he has received under the contract, performed by both parties," had the words " by its per- but he is entitled to nothing more. formance on both sides." (c) The original section, instead of " something dif- (6) Repealed section: ferent from or less than that to which the person agree- Sec. 1513. If a debtor is dissuaded by his creditor ing to accept is entitled," had the words " something to from performance, but is not actually forbidden to which the person agreeing to accept is not otherwlBe perform, he may, at his option, omit to i^erform, and entitled." 747 6522-6542 CIVIL CODE. 6522. Effect of accord. Sec. 1522. Though the parties to an accord are bound to execute it, yet it does not extinguish the obligation until it is fully executed. 6523. Satisfaction, xohat. Sec 1523. AccejDtance, by the creditor, of the consideration of an accord ex- tinguishes the obUgation, and is called satisfaction. 6524. Part iierformance in satisfaction. Sec. 1524. Part performance of an obligation, either before or after a breach thereof, when expressly accejDted by the creditor in writing, in satisfaction, or rendered in pursuance of an agreement in writing, for that purpose, though without any new consideration, extinguishes the obligation. {Amendment, ap- proved March 30, 1874; Amendments 1873-4, 241; took effect July 1, 1874.'''> GHAPTEE V. NOVATION. 6530. Xovation, ivhat. Sec. 1530. Novation is the substitution of a new obligation for an existing one. 6531. Modes of novation. Sec. 1531, Novation is made : 1. Bj' the substitution of a new obligation between the same parties, with intent to extinguish the old obligation; 2. By the substitution of a new debtor in place of the old one, with intent to release the latter; or, 3. By the substitution of a new creditor in place of the old one, with intent to transfer the rights of the latter to the former. 6532. Novaiion a contract. Sec. 1532. Novation is made by contract, and is subject to all the rules con- cerning contracts in general. 6533. Novation, right to rescind contract of. Sec 1533. When the obligation of a third person, or an order upon such person, is accepted in satisfaction, the creditor may rescind such acceptance if the debtor prevents such person from complying wdth the order, or from ful- filling the obligation; or if, at the time of the obligation or order is received, such person is insolvent, and this fact is unknown to the creditor, or, if before the creditor can with reasonable diligence present the order to the person upon wLom it is given, he becomes insolvent. [Amendinent, api>roved March 30, 1874; Amendnienl>i 1873-4, 241; took effect July 1, 1874.'"^ CHAPTER VI. RELEASE. 6541. Ol>ligation e.rlingvished by release. Sec 1541. An obligation is extinguished by a release therefrom given to the debtor by the creditor, upon a new consideration, or in writing, with or without new consideration. 6542. General release, not to extend to certain claims. Sec 1542. A general release does not extend to claims w'hich the creditor (a) The oiifffnal fiection did not have the -words " in the creditor may rescind such acceptance if the debtor writing " in cither of the places where they occur iu prevents such person from complying with the order, the above amendment. or from fulfilling the obligation; or if, before tlie cred- Ih) Original section: itor can with reasonable diligence reach such person, Sec. laaa. When the obligation of a third person, or he becumeu insolvent. an order upon such person, Is accepted iu satisfaction, 748 CONTEACTS. 6542-6556 does not know or suspect to exist in his favor at the time of executing the re- lease, which if known by him must have materially affected his settlement with the debtor. [Amendment, approved March 30, 1874; Amendments 1873-4, 241; took effect July 1, 1874/''> 6543. Release of several joint debtors. Sec. 1543. A release of one of two or more joint debtors does not extinguish the obligations of any of the others, unless they are mere guarantors; nor does it affect their right to contribution from him. P^RT II. CONTKACTS. Title I. Nature of a Conteact 6549 II. Manner of Creating Contracts 6619 III. Interpretation of Contracts 6635 IV. Unlawful Contracts 6667 V. Extinction of Contracts 6682 TITLE I. Itatutt of a (fontract. Chaptee I. Definition 6549 II. Parties 6556 III. Consent 6565 IV. Object 6595 V. Consideration 6605 CHAPTEE I. definition. 6549. Contract, what. Sec. 1549. A contract is an agreement to do or not to do a certain thing. 6550. Essential elements of contract. Sec. 1550. It is essential to the existence of a contract that there should be: 1. Parties capable of contracting; 2. Their consent; 3. A lawful object; and, 4. A sufficient cause or consideration. CHAPTER II. PARTIES. . 6556, Who may contract. Sec 1556. All persons are capable of contracting, except minors, persons of unsound mind, and persons deprived of civil rights. (a) The original section, instead of " does," had the word " did," acd did not hare the laet clause commenc- Ing with the words " which if known by him," 749 6557-6572 CIYIL CODE. 6557. llinors, etc. Sec. 1557. Minors and persons of unsound mind, have onlj^ such capacity as is defined by Part I of Division I of this Code. 6558. Identification of parties necessary. Sec. 1558. It is essential to the validity of a contract, not only that the par- ties should exist, but that it should be possible to identify them. 6559. When contract for benefit of third person may he enforced. Sec. 1559. A contract, made expressly for the benefit of a third person may be enforced by him at any time before the parties thereto rescind it. CHAPTEE III. CONSENT. 6565. Essentials of consent. Sec. 15G5. The consent of the parties to a contract must be: 1. Free; 2. Mutual; and, 3. Communicated by each to the other. 6566. Consent, when voidable. Sec. loGG. A consent which is not free is nevertheless not absolutely void, but may be rescinded by the parties, in the manner prescribed by the chapter on rescission. 6567. Apparent consent, when not free. Sec. 15G7. An apparent consent is not real or free when obtained through: 1 Duress; 2. Menace; 3. Fraud; 4. Undue influence; or, 5. Mistake. 6568. Wlien deemed to have been obtained by fraud, etc. Sec. 15G8. Consent is deemed to have been obtained through one of the causes meutioned in the last section only when it would not have been given had such cause not existed. 65S9. Duress, ichat. Sec. 1569. Duress consists in: 1. Unlawful confinement of the person of the party, or of the husband or wife of such party, or of an ancestor, descendant, or adopted child of such party, husband, or wife; 2. Unlawful detention of the i:)roperty of any such person; or, 3. Confinement of such person, lawful in form, but fraudulently obtained, or fraudulently made unjustly harassing or oppressive. 6570. Mmace, what. Sec. 1570. Menace consists in a threat: 1. Of such duress as is specified in subdivisions 1 and 3 of the last section; 2. Of unlawful and violent injury to the person or property of any such per- son as is specified in the last section; or, 3. Of injuiy to the character of any such person. 6571. Fraud, actual or constructive. Sec. 1571. Fraud is either actual or constructive. 6572. Actual fraud, what. Sec. 1572. Actual fraud, within the meaning of this chapter, consists in any of the following acts, committed by a party to the contract, or with his conniv- 750 CONTRACTS. G572-G580 ance, with intent to deceive another party thereto, or to induce him to enter into the contract: 1. The suggestion, as a fact, of that which is not true, by one who does not believe it to be true; 2. The positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true; 3. The suppression of that which is true, by one having knowledge or belief of the fact; 4. A promise made without any intention of performing it; or, 5. Any other act fitted to deceive. 6573. Constructive fraud. Sec. 1573. Constructive fraud consists: 1. In any breach of duty which, without an actually fraudulent intent, gains an advantage to the person in fault, or any one claiming under him, by mis- leading another to his j)rejudice, or to the prejudice of any one claiming under him; or, 2. In any such act or omission as the law specially declares to be fraudulent, without respect to actual fraud. 6574. Actual fraud a question of fact. Sec. 1574. Actual fraud is always a question of fact. 6575. Undue influence, ichat. Sec. 1575. Undue influence consists: 1. In the use, by one in whom a confidence is reposed by another, or who holds a real or apparent authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage over him; 2. In taking an unfair advantage of another's weakness of mind; or, 3. In taking a grossly oppressive and unfair advantage of another's necessi- ties or distress. 6576. MlMake, what. Sec. 1576. Mistake may be either of fact or law. 6577. Mistake of fad. Sec. 1577. Mistake of fact is a mistake, not caused by the neglect of a legal duty on the part of the person making the mistake, and consisting in : 1. An unconscious ignorance or forgetfulness of a fact joast or present, mate- rial to the contract; or, 2. Belief in the present existence of a thing material to the contract, which does not exist, or in the past existence of such a thing, which has not existed. 6578. Mistake of law. Sec 1578. Mistake of law constitutes a mistake, within the meaning of this article, only when it arises from: 1. A misapprehension of the law by all parties, all supposing that they knew and understood it, and all making substantially the same mistake as to the law; or, 2. A misapprehension of the law by one party, of which the others are aware at the time of contracting, but which they do not rectify. ' 6579. Mistake of foreign laws. Sec 1579. Mistake of foreign laws is a mistake of fact. 6580. Mutuality of consent. Sec 1580. Consent is not mutual, unless the parties all agree upon the same tiling in the same sense. But in certain cases defined by the chapter on inter- pretation, they are to be deemed so to agree without regard to the fact. 751 I 6581-6596 CIVIL CODE. 6581. Communication of consent. Sec. 1581. Consent can be communicated witli effect, only by some act or omission of the party contracting, by which he intends to communicate it, or •which necessarily tends to such communication. 6582. Mode of communicating acceptance of proposal. Sec. 1582. If a jDroposal prescribes any conditions concerning the communi- cation of its acceptance, the proposer is not bound unless they are conformed to; but in other cases any reasonable and usual mode may be adopted. 6583. Mlien communication deemed complete. Sec. 1583. Consent is deemed to be fully communicated between the parties as soon as the jDarty accepting a proposal has put his accej)tance in the course of transmission to the proposer, in confonnity to the last section. 6584. Acceptance Jjy performance of conditions. Sec. 1584:. Performance of the conditions of a jn'oposal, or the acceptance of the consideration offered with a j)roposal, is an acceptance of the j)roposal. 6585. Acceptance must be absolute. Sec. 1585. An acceptance must be absolute and unqualified, or must include in itself an acceptance of that character which the proposer can separate from the rest, and which will conclude the jDcrson accepting. A qualified accept- ance is a new proposal. 6586. Revocation of proposal. Sec. 1586. A proposal may be revoked at any time before its acceptance is communicated to the proj^oser, but not afterw^ards. 6587. Bevocation, how made. Sec. 1587. A proposal is revoked: 1. By the communication of notice of revocation by the proposer to the other part}', in the manner prescribed by sections 1581 and 1583, before his accept- ance has been communicated to the former; 2. By the lapse of the time jirescribed in such proposal for its accejitance, or if no time is so prescribed, the lapse of a reasonable time without communica- tion of the acceptance; 8. By the failure of the accej)tor to fulfill a condition precedent to accept- ance; or, 4. By the death or insanity of the proposer. 6588. Itatification of contract void for want of consent. Sec 1588. A contract which is voidable solely for want of due consent, may be ratified by a subsequent consent. 6589. Assumption of oUlrjation by acceptance of benefds. Sec 1 589. A voluntary acceptance of the benefit of a transaction is equivalent to a consent to all the obligations arising from it, so far as the facts are known, or ought to be known, to the jierson accepting. CHAPTER IV. OBJECT OF A CONTRACT. 6595. Object, ivhal. Sec. 1595. Tlie object of a contract is the thing which it is agreed, On the part of the jmrty receiving the consideration, to do or not to do. 6596. Requisites of object. Sec 1590. The object of a contract must be lawful when the contract is made, and possible and ascertainable by the time the contract is to be performed. 752 CONTEACTS. 6597-GG13 6597. Impossibility, what. Sec. 1597. Everything is deemed possible except that wliich is impossible in the nature of things. 6598. Wien contract ivholly void. Sec. 1598. AVhere a contract has but a single object, and such object is un- lawful, whether in Avhole or in part, or wholly impossible of i:)erformunce, or so vaguely expressed as to be wholly unaseertainable, the entire contract is void. CHAPTEE V. CONSIDEIIATION. 6605. Good consideration, what. Sec. 1C05. Any benefit conferred, or agreed to be conferred, upon the jirom- isor, by any other person, to which the promisor is not lawfully entitled, or any prejudice suffered, or agreed to be suffered, by such person, other than such as he is at the time of consent lawfully bound to suffer, as an inducement to the promisor, is a good consideration for a j^romise. 6606. How far legal or moral obligation is a good consideration. Sec. 1606. An existing legal obligation resting uj)on the promisor, or a moral obligation originating in some benefit conferred upon the promisor, or preju- dice suffered by the j)romisee, is also a good consideration for a promise, to an extent corresponding with the extent of the obligation, but no further, or otherwise. 6607. Gonsideratjon lawful. Sec. 1607. The consideration of a contract must be lawful within the meaning of section 1667. 6608. Effect of its illegality. Sec. 1608. If any part of a single consideration for one or more objects, or of several considerations for a single object, is unlawful, the entire contract is void. 6609. G onsideration executed or executory. Sec. 1609. A consideration may be executed or executory, in whole or in part. In so far as it is executory it is subject to the provisions of Chapter IV of this title. 6610. Executory consideration. Sec. 1610. "When a consideration is executory, it is not indispensable that the contract should specify its amount or the means of ascertaining it. It may be left to the decision of a third person, or regulated by any specified standard. 6611. How ascertained. Sec. 1611. When a contract does not determine the amount of the considera- tion, nor the method by which it is to be ascertained, or when it leaves the amount thereof to the discretion of an interested party, the consideration must be so much money as the object of the contract is reasonably worth. 6612. Effect of impossihility of ascertaining consideration. Sec. 1612. Where a contract provides an exclusive method by which its con- sideration is to be ascertained, which method is on its face impossible of exe- cution, the entire contract is void. 6613. Same. Sec. 1613. Where a contract provides an exclusive method by which its con- sideration is to be ascertained, which method appears possible on its face, but in fact is, or becomes, impossible of execution, such provision only is void. 48 753 6614-6G24 CFV'IL CODE. 6614. Writfen insfi'iiment prcmmptive evidence of consideration. Sec. IGl-l. A written instrument is presumptive evidence of a consideration. 6615. Burden of proof to invalidate sufficient consideration. Sec. IGlo. The burden of showing a want of consideration sufficient to sup- port an instrument lies with the party seeking to invalidate or avoid it. TITLE II. Blauucr of (rrcatin0 (fontracto. 6619. Contracts, express or implied. Sec. 1619. A contract is either express or implied. 6620. Express contract, xohat. Sec. 1G20. An express contract is one, the terms of which are stated in wordg. 6621. Implied contract, xoliat. Sec. 1G21. An implied contract is one, the existence and terms of which are manifested by conduct. 6622. What contracts may he oral. Sec. 1G22. All contracts may be oral, except such as are specially required by statute to be in writing. 6623. Contract not in writing through fraud, may he enforced against fraudulent party. Sec. 1G23. "Where a contract, which is required by law to be in writing, is prevented from being \}\xi into writing by the fraud of a party thereto, any other party who is by such fraud led to believe that it is in writing, and acts upon such belief to his prejudice, may enforce it against the fraudulent party. 6624. What contracts must he in writing. f. I'jpc. 1G24. The following contracts are invalid, unless the same, or some an agent or iji- aoraudum thereof, be in writing and subscribed by the party to be tion or a «r..,. , , . , ° J i J ^ea, or by his agent: 1. All agreement that by its terms is not to be performed within a year from the making thereof; 2. A si^ecial promise to answer for the debt, default or miscarriage of another, except in the cases pro%'ided for in section twenty-seven hundred and ninety- four of this code; 3. An agreement made upon consideration of marriage, other than a mutual promise to marry; 4. An agreement for the sale of goods, chattels, or things in action, at a price not less than two hundred dollars, unless the buyer accept or receive part of such goods and cliattels, or the evidences, or some of them, of such things in action, or pay at the time some part of the purchase-money; but when a sale is made by auction, an entry by the auctioneer in his sale book, at the time of the sale, of the kind of property sold, the terms of sale, the price, and the names of the purc-luxser and j^erson on whose account the sale is made, is a sufficient memorandum; 5. An agreement for the leasing for a longer period than one year, or for the sale of real property, or of an interest therein; and such agreement, if made by an agent of the party sought to be charged, is invalid, unless the authority of the 7o4 CONTRACTS. 6G24-6640 agent be in writing', subscribed by the party sought to be charged. [A7nend- ment, approved March 30, 1874; AviendmoUs 1873-4, ^41; took effect July 1, 1874.<^' 6625. Effect of writing. Sec. 1625, The execution of a contract in writing, whether the law requires it to be written or not, supersedes all the oral negotiations or stipulations con- cerning its matter which preceded or accomj^anied the execution of the instni- ment. 6626. Contract in xoriting takes effect, when. Sec 1626. A contract in writing takes effect upon its delivery to the party in whose favor it is made, or to his agent. 6627. Provisions of chapter on transfers of real property. Sec. 1627. The provisions of the chai:)ter on transfers in general, concerning the delivery of grants, absolute and conditional, apply to all written contracts. 6628. Corporate seal, how affixed. Sec. 1628. A corporate or official seal may be affixed to an instrument by a mere impression upon the paper or other material on which such instrument is written. 6629. Provisions abolishing seals made applicable. Sec 1629. All distinctions between sealed and unsealed instruments are abolished. TITLE III. luterpittation of (!loutract0. 6635. Uniformity of interpretation. Sec. 1635. All contracts, whether public or private, are to be interiDreted by the same rules, except as otherwise provided by this code. 6636. Contracts, how to he interpreted. Sec 1636. A contract must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful. 6637. Intention of parties, how ascertained. Sec 1637. For the purpose of ascertaining the intention of the parties to a contract, if otherwise doubtful, the rules given in this chaj^ter are to be applied. 6638. Intention to be ascertained from language. Sec 1638. The language of a contract is to govern its interpretation, if the language is clear and explicit, and does not involve an absurdity. 6639. Interpretation ofioritten contracts. Sec 1639. "When a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone, if possible; subject, however, to the other provisions of this title. 6640. Writing, when disregarded. Sec 1640. When, through fraud, mistake, or accident, a written contract fails to express the real intention of the parties, such intention is to be regarded, and the erroneous parts of the writing disregarded. (o) Original Bection: agent for the purpose: 1. An agreement that by its Sec. 1624. The fuUowing contracts, or some memo- terms cannot be fully performed within one year; 2. randum thereof, expreBsiug the parties, their consent. An agreement made upon consideriition of man-iage, and the object of the contract, must be in writing, sub- other than unitual promises to marry, scribed by the party to be charged thereby, or by his 755 6G41-6652 CH^L CODE. 6641. Effect to he given to every paii of contract. Sec. 1G41. Tbe whole of a contract is to be taken together, so as to give effect to every part, if reasonably jDracticable, each clause hel^nng to interpret the other. 6642. Several contracts when taken together. Sec. IG'42. Several contracts relating to the same matters, between the same parties, and made as parts of substantially one transaction, are to be taken together. 6643. Interpretation in favor of contract. Sec. 1043. A contract must receive such an interpretation as will make it lawful, operative, definite, reasonable, and capable of being carried into effect, if it can be done without violating the intention of the parties. 6644. Words to be understood in usual sense. Sec 1G44. The words of a contract are to be understood in their ordinary and popular sense, rather than according to their strict legal meaning; unless used by the parties in a technical sense, or unless a special meaning is given to them by usage, in which case the latter must be followed. 6645. Technical icords. Sec 1G45. Technical words are to be iiiterj)reted as usually understood by persons in the profession or business to which they relate, unless clearly used in a different sense. 6646. Law of place. Sec 1G4G. A contract is to be interpreted according to the law and usage of the place where it is to be performed; or, if it does not indicate a place of per- formance, according to the law and usage of the place where it is made. 6647. Contracts eocplained by circumstances. Sec 1C47. A contract may be explained by reference to the circumstances under which it was made, and the matter to which it relates. 6648. Contract restricted to Us evident object. Sec 1G48. However broad may be the terms of a contract, it extends only to those things concerning which it appears that the parties intended to contract. 6649. Inierpretalion in sense in which promisor believed j^romisee to i-ely. Sec 1G49. If the terms of a promise are in any respect ambiguous or uncer- tain, it must be interj)reted in the sense in which the promisor believed, at the time of making it, that the promisee understood it. 66£0. Farticvlar clause subordinate to general intent. Sec 1C50. Particular clauses of a contract are subordinate to its general intent. 6651. Contract, partly written and partly pyrinted. Sec 1G51. Where a contract is jmrtly written and partly printed, or where part of it is written or printed under the special directions of the parties, and with a special view to their intention, and the remainder is copied from a form originally prepared without special reference to the particular parties and the particular (contract in question, the written parts control the printed parts, and the parts which are jjurely original control those which are coi)ied from a form. And if the two are absolutely repugnant, the latter must be so far disregarded, 66.'' 2. I/tjnignanciis, how reconciled. Sec 1G52. Repugnancy in a contract must be reconciled, if possible, by such an interpretation as will give some effect to the repugnant clauses, subordinate to the general intent and purpose of the whole contract. 756 CONTRACTS. GG53-GGG8 6653. Inconsistent words rejected. Sec. 1653. Words in a contract whicli are wholly inconsistent with its nature, or with the main intention of the parties, are to be rejected. 6654. Words to be taken most strongly against icliom. Sec. 1654. In cases of uncertainty not removed by the preceding rule, the language of a contract should be interpreted most strongly against the party who caused the uncertainty' to exist. The promisor is presumed to be such party; excej)t in a contract between a public officer or body, as such, and a private party, in which it is presumed that all uncertainty was caused by the private jDarty. 6655. Reasonable stipulations, lohen implied. Sec. 1G55. Stipulations which are necessary to make a contract reasonable, or conformable to usage, are implied, in respect to matters concerning which the contract manifests no contrary intention. 6656. Necessary incidents implied. Sec 1656. All things that in law or usage are considered as incidental to a contract, or as necessary to carry it into effect, are implied therefrom, unless some of them are expressly mentioned therein, when all other things of the same class are deemed to be excluded. 6657. Time of performance of contract. Sec. 1657. If no time is specified for the performance of an act required to be performed, a reasonable time is allowed. If the act is in its nature capable of being done instantly— as, for example, if it consists in the payment of money only — it must be j^erf ormed immediately upon the thing to be done being exactly ascertained. 6658. [Sec 1658^^^ was repealed by act approved March 30, 1874; Amendments 1873-4, 242; took effect Jidy 1, 1874.] 6659. When joint and several. Sec 1659. Where all the parties who unite in a promise receive some benefit from the consideration, whether past or present, their promise is presumed to be joint and several. 6660. Same. Sec 1660. A promise, made in the singular number, but executed by several persons, is presumed to be joint and several. 6661. Executed and executory contracts, what. Sec 1661. An executed contract is one, the object of which is fully performed. All others are executoiy. TITLE lY. 6667. What is nnlaiiful. Sec 1667. That is not lawful which is: 1. Contrary to an express provision of law; 2. Contrary to the policy of express law, though not expressly prohibited; or, 3. Otherwise contrary to good morals. 6668. Certain contracts unlawful. Sec 1668. All contracts which have for their object, directly or indirectly, to (a) Repealed section: sence of a contract, unless by its terms expressly so Sec. 1658. Time is never considered as of the es- ijrovided. 757 6G68-6682 CIVIL CODE. exemjit anj' one from responsibility for bis own fraud, or -u-illful injiuy to the person or proj^erty of another, or violation of law, whether willful or negligent, are against the policy of the law. 6669. [Sec. IGGD*"' was repealed by act approved March 30, 1874; Amendments 1873-4, 242; took eflect July 1, 1874.] 6670. Contract fixing damages, void. Sec. 1670. Every contract by which the amount of damage to be paid, or other compensation to be made, for a breach of an obligation, is determined in anticipation thereof, is to that extent void, except as expressly provided in the next section. 6671. Exception. Sec. 1071. The parties to a contract may agree therein upon an amount which shall be presumed to be the amount of damage sustained by a breach thereof, when, from the nature of the case, it would be impracticable or extremely diffi- cult to fix the actual damage. 6672. [Sec. 1072^'"' was repealed by act approved March 30, 1874; Amendments 1873-4, 242; took effect July 1, 1874.] 6673. Contract in restraint of trade, void. Sec. 1G73. Every contract by which any one is restrained from exercising a lawful profession, trade, or business of any kind, otherwise than is provided by the next two sections, is to that extent void. 6674. Exception in favor of sale of good loiil. Sec. 1674. One who sells the good will of a business may agree with the buyer to refrain from can'ying on a similar business within a specified county, city, or a part thereof, so long as the buyer or any person deriving title to the good will from him, carries on a like business therein. 6675. Exception in favor of partneraldp arrangements. Sec. 1675. Partners may, upon or in anticipation of a dissolution of the part- nership, agree that none of them will carry on a similar business within the same city or town where the partnership business has been transacted, or within a specified part thereof. 6676. Contract in restraint of marriage, void. Sec. 1676. Every contract in restraint of the marriage of any j^erson, other than a minor, is void. TITLE Y. (f Alinction of (Tonlracb. Chapter I. Contracts, how Extinguished GG82 II. Kescission 6688 III. Alteration and Cancellation GG97 CHAPTEE I. CONTRACTS, HOW EXTINGUISHED. 6682. Contrart, hovj extinguished. Si:c. 1G82. A contract may be extinguished in like manner with any other obligation, and also in the manner prescribed by this title. (a) Repealed neotlon : (h) Repealed section: Sec. IfiCa. PenalticH iiupdHfidby conlraot foranynon- Sec. J 072. Every Rtipiilntion or condition in a con- perfornianf-e thereof, an; void, lint this Kection doeRuot tract, by which any party thereto is restricted from render void puch Ix.udH or '.bligatioiiB, penal in form, UH enforcing his rights under the contract by the usual have heretofore been commonly used; it merely re- legal proceedings in the ordinary tribunals, or which jecte and avoids the penal clauecB. limits the time within which he may thus enforce his rights, is void. 758 CONTRACTS. 6C88-G698 CHAPTEE II. RESCISSION. 6688. Eescission eximguishes contract. Sec. 1G88. A contract is extinguished by its rescission. 6689. WJien party may rescind. Sec. 1689. A party to a contract may rescind the same in the following cases only: 1. If the consent of the party rescinding, or of any ]oarty jointly contracting with him, was given by mistake, or obtained through duress, menace, fraud, or undue influence, exercised by or with the connivance of the party as to whom he rescinds, or of any other party to the contract jointly interested Avith such party; 2. If, through the fault of the party as to whom he rescinds, the considera- tion for his obligation fails, in whole or in part; 3. If such consideration becomes entirely void from any cause; 4. If such consideration, before it is rendered to him, fails in a material re- spect, from any cause; or, 5. By consent of all the other parties. 6690. When stipulations against right to rescind do not defeat it. Sec 1690. A stipulation that errors of description shall not avoid a contract, or shall be the subject of compensation, or both, does not take away the right of rescission for fraud, nor for mistake, where such mistake is in a matter essen- tial to the inducement of the contract, and is not capable of exact and entire compensation. 6691. Rescission, how effected. Sec 1691. Eescission, when not effected by consent, can be accomplished only by the use, on the part of the party rescinding, of reasonable diligence to comply with the following rules: 1. He must rescind promptly upon discovering the facts which entitle him to rescind, if he is free from duress, menace, undue influence, or disability, and is aware of his right to rescind; and, 2, He must restore to the other party everj'thing of value which he has received from him under the contract; or must offer to restore the same, upon condition that such party shall do likewise, unless the latter is unable or j)Osi- tively refuses to do so. CHAPTEE III. ALTERATION AND CANCELLATION. 6697. Alteration of verbal contract. Sec 1697. A contract not in writing may be altered in any respect by con- sent of the parties, in writing, without a new consideration, and is extinguished thereby to the extent of the new alteration. [Amendment, approved March 30, 1874; Amendmerds 1873-4, 242; took effect July 1, 1874.^"' 6698. Alteration of written contract. Sec. 1698. A contract in writing may be altered by a contract in writing, or by an executed oral agreement, and not otherwise. [Amendment, approved March 30, 1874; Amendmeids 1873-4, 242; took effect July 1, 1874."" (a) Original section: (6) Original section: Sec. 1697. A contract may be altered in any respect Sec. 1698. A contract in -writing may be altered by a by consent of the parties, without a new consideration, contract in writing, or by an executed oral agreement ; and is extinguished thereby to the extent of the alter- and not otherwise, except aa to the time of perlorin- ation. ■ ance, which may be extended by any form of agree- ment. 759 6699-6713 CIVIL CODE. 6699. Extinction by cancellation, etc. Sec. 1699. The destruction or cancellation of a written contract, or of the sig- nature of the parties liable thereon, with intent to extinguish the obligation thereof, extinguishes it as to all the 25arties consenting to the act. 6700. Extinction by unauthorized alteration. Sec. 1700. The intentional destruction, cancellation, or material alteration of a written contract, by a party entitled to any benefit under it, or with his con- sent, extinguishes all the executory obligations of the contract in his favor, against parties who do not consent to the act. 6701. Alteration of diiplicate not to prejudice. Sec. 1701. "Where a contract is executed in duplicate, an alteration or destruction of one copy, while the other exists, is not within the provisions of the last section. P»A.RT III. OBLIGATIONS IMPOSED BY LAW. 6708. Abstinence from injury. Sec. 1708. Every person is bound, without contract, to abstain from injuring the person or property of another, or infringing upon any of his rights. 6709. Fraudulent deceit. Sec. 1709. One who willfully deceives another with intent to induce him to alter his position to his injury or risk, is liable for any damage which he thereby suffers. 6710. Deceit, what. Sec 1710. A deceit, within the meaning of the last section, is either: 1. The suggestion, as a fact, of that which is not true, by one who does not believe it to be tiaie; 2. The assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true; 3. The suppression of a fact, by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communica- tion of that fact; or, 4. A promise, made without any intention of performing it. 6711. Deceit upon the public, etc. Sec 1711. One who practices a deceit with intent to defraud the public, or a particular class of persons, is deemed to have intended to defraud every indi- vidual in that class, who is actually misled by the deceit, 6712. licHtoration of thing ivrongfully acquired. Sec 1712. One who obtains a thing without the consent of its owner, or by a consent aftei'wards rescinded, or by an unlawful exaction which the owner could not at the time jji-udently refuse, must restore it to the person from whom it was thus obtained, unless he has acquired a title thereto superior to that of such other person, or unless the transaction was corrujat and unlawful on both sides. 6713. Wien demand necessary. Sec 1713. The restoration required by the last section must be made without 760 SALE. 6713-6715 demand, except where a tliiug is obtained by mutual mistake, in wliich case the party obtaining the thing is not bound to return it until he has notice of the mistake. 6714. BesponHibility for willful acts, negligence, etc. Sec. 1714. Every one is responsible, not only for the result of his -willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his joroperty or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself. The extent of liability in such cases is defined by the title on compensatory relief. 6715. Other obligations. Sec. 1715. Other obligations are prescribed by Divisions I and II of this Code. PART IV. OBLIGATIONS AKISING FEOM PAETICULAR TEANSACTIONS. Title I. Sale 6721 11. Exchange 6804 III. Deposit 6813 IV. Loan 6884 V. Hiring 6925 VI. Service 6965 VII. Carriage 7085 VIII. Trust 7215 IX. Agency 7295 X. Partnership 7395 XI. Insurance 7527 XII. Indemnity 7772 XIII. Guaranty 7787 XIV. Lien 7872 XV. Negotiable Instruments 8086 XVI. General Proyisions 8268 TITLE I. Sale. Chapter I. General Provisions 6721 II. Eights and Obligations of the Seller 6748 III. Eights and Obligations of the Buyer 6784 IV. Sale by Auction 6792 CHAPTEE I. GENERAL PROYISIONS. Article I. Sale 6721 II. Agkkements for Sale 6726 III. FOKM OF THE CoNTKACT 6739 761 6721-6734 CIVIL CODE. AKTICLE I. SALE. 6721. Sale, what. Sec. 1721. Sale is a contract by which, for a pecuniary consideration, called a price, one transfers to another an interest in pro^^erty. 6722. Subject of sale. Sec. 1722. The subject of sale umst be property, the title to which can be immediately transferred from the seller to the buyer. AETICLE II. AGREEMENTS FOR SALE. 6726. Agreement for sale. Sec. 1726. An agreement for sale is either: 1. An agreement to sell; 2. An agreement to buy ; or, 3. A mutual agreement to sell and buy. 6727. Agreement to sell. Sec. 1727. An agreement to sell is a contract by which one engages, for a price, to transfer to another the title to a certain thing. 6728. Agreement to buy. Sec 1728. An agreement to buy is a contract by which one engages to accept from another, and pay a j)rice for the title to a certain thing. 6729. Agreement to sell and buy. Sec 1729. An agreement to sell and buy is a contract by which one engages to transfer the title to a certain thing to another, who engages to accept the same from him and to pay a jDrice therefor. 6730. What may be the subject of the contract. Sec. 1730. Any property which, if in existence, might be the subject of sale, may be the subject of an agreement for sale, whether in existence or not. 6731. Agreement to sell real j)roperty . Sec 1731. An agreement to sell real property binds the seller to execute a conveyance in form sufficient to pass the title to the jDropei-ty. [Amendment , approved March 30, 1874; Amendments 1873-4, 243; took effect July 1, 1874.'^> 6732. [Sec 1732<''> was repealed by act approved March 30, 1874; Amend- ments 1873-4, 243; took effect July 1, 3874.1 6733. Usual common laio covenants required by such contracts, when. Sec 1733. An agreement on the part of a seller of real property to give the usual covenants, binds him to insert in the grant covenants of "seizin," "quiet enjoyment," "further assurance," " general warranty," and " against incum- brances." 6734. Form of such covenants. Sec 1734. The covenants mentioned in the last section must be in substance as follows: "The party of the first part covenants with the party of the second part, that the former is now seized in fee simple of the i:)roi5erty granted; that the latter shall enjoy the same without any lawful disturbance; that the same is free from all incumbrances; that the pai'ty of the first part, and all persons acquiring any interest in the same through or for him, will, on demand, execute (a) Original section: (6) Repealed section: Sbc. 17:U. An atjreempnt to Bf-U real property binds Sec 1732. An agreement to sell real property binds the seller to execute a grunt in the form and man- the Bcller to execute a grant in the form prescribed by ner prescribed by the c hapter on transfers of real prop- section 1092. erty. 762 SALE. 6734-6749 and deliver to the party of the second part, at the expense of the latter, any- further assurance of the same that may be reasonably required; and that the party of the first part will warrant to the party of the second part all the said property against every person lawfully claiming the same." AETICLE III. FORM OF THE CONTRACT. 6739. Contract for sale of personal property. Sec 1739. No sale of personal property, or agreement to buy or sell it for a price of two hundred dollars or more, is valid, unless: 1. The agreement or some note or memorandum thereof be in writing, and subscribed by the party to be charged, or by his agent; or, 2. The buyer accepts and receives part of the thing sold, or when it consists of a thing in action, part of the evidences thereof, or some of them; or, 3. The buyer, at the time of sale, pays a pai't of the price. [Amendment, ap- proved Ifarvh 30, 1874; Amendments 1873-4, 243; took eject July 1, 1874.^"^ 6740. Contract to mariufacture. Sec. 1740. An agreement to manufacture a thing, from materials furnished by the manufacturer, or by another person, is not within the provisions of the last section. 6741. Contract for sale of real property. Sec 1741. No agreement for the sale of real property, or of an interest therein, is valid, unless the same, or some note or memorandum thereof, be in writing, and subscribed by the party to be charged, or his agent, thereunto authorized, in writing; but this does not abridge the power of any court to compel the spe- cific performance of any agreement for the sale of real property in case of jDart performance thereof. [Amendment, approved Ilarch 30, 1874; Amendments 1873-4, 243; took effect July 1, 1874.^"' CHAPTER II. BIGHTS AND OBLIGATIONS OF THE SELLEE. Article I. Eights and Duties befoee Delivery 6748 II. Delivery 6753 III. Warranty 6763 ARTICLE I. RIGHTS AND DUTIES BEFORE DELIVERY. 6748. When seller must act as depositary. Sec. 1748. After personal property has been sold, and until the delivery is completed, the seller has the rights and obligations of a depositary for hire, except that he must keep the property, without charge, until the buyer has had a reasonable opportunity to remove it. 6749. When seller may resell. Sec 1749. If a buyer of personal property does not pay for it according to (a) The original section differed in the first and sec- or of any estate therein, other than an estate for a term end subdivisions. The first was as follows: not exceeding one year, is valid, unless a mcnnorandum "1. A memorandum of the contract, showing the par- thereof, showing the parties, their consent, and the ties, their consent, and the subject of sale, is made in subject of sale, is made in writing, and subscribed by writing, and subscribed by the party to be charged; the party to be charged or his agent, thereunto author- or." ized in writing, or unices the contract has been The second subdivision did not have the words " or partially performed by the party seeking to enforce it, some of them." and such part performauce has been accepted by the (6) Original section: other. Sec, 1741. No agreement for the sale of real property, 763 6749-6767 CIYIL CODE. contract, and it remains in the joossession of the seller after payment is due, the seller may rescind the sale, or may enforce his lien for the price, in the manner j)rescribed by the title on liens. AKTICLE II. DELIVERY. 6753. Delivery on demand. Sec. 1753. One who sells personal property, whether it was in his possession at the time of sale or not, must put it into a condition fit for delivery, and de- liver it to the buyer within a reasonable time after demand, unless he has a lien thereon. 6754. Delivery, where made. Sec. 1754. Personal property sold is deliverable at the jDlace where it is at the time of the sale or agreement to sell, or if it is not then in existence, it is deliverable at the place where it is j)roduced. 6755. Expense of transporlalion. Sec 1755. One who sells jiersonal property must bring it to his own door, or other convenient place, for its acceptance by the buyer, but further transporta- tion is at the risk and expense of the buyer. 6756. Notice of election as to delivery. Sec. 1756. When either party to a contract of sale has an option as to the time, place, or manner of delivery, he must give the other party reasonable notice of his choice; and if he does not give such notice within a reasonable time, his right of option is waived. 6757. Buyer's directions as to manner of sending things sold. Sec. 1757. If a seller agrees to send the thing sold to the buyer, he must follow the directions of the latter as to the manner of sending, or it will be at his own risk during its transportation. If he follows such directions, or if, in the absence of special directions he uses ordinary care in forwarding the thing, it is at the risk of the buyer. 6758. Delivery to be within reasonable hours. Sec. 1758. The delivery of a thing sold can be ofifered or demanded only within reasonable hours of the day. AETICLE III. WARRANTY. 6763. Warranty, what. Sec 17G3. A warranty is an engagement by which a seller assures to a buyer the existence of some fact affecting the transaction, whether past, present, or future. 6764. No implied warranty in mere contract of sale. Sec 1764. Except as prescribed by this article, a mere contract of sale or agreement to sell does not imply a warranty. 6765. Warranty of title to personal property. Sec 1765. One who sells or agrees to sell personal property, as his own, thereby warrants that he has a good and unincumbered title thereto. 6766. Warranty on sale by sample. Sec 1766. One who sells or agrees to sell goods by sample, thereby warrants the bulk to be equal to the sample. 6767. When seller knows that buyer relies on his statements. Sec 1767. One who sells or agrees to sell personal i^roperty, knowing that 764 SALE. 6767-6778 the buyer relies upon his advice or judgment, thereby wan'ants to the buyer that neither the seller, nor any agent employed by him in the transaction, knows the existence of any fact concerning the thing sold which would, to his knowledge, destroy the buyer's inducement to buy. 6768. Merchandise not in existence. Sec. 1768. One who agrees to sell merchandise not then in existence, thereby warrants that it shall be sound and merchantable at the place of production contemplated by the parties, and as nearly so, at the place of delivery, as can be secured by reasonable care. 6769. Manufacturer' s warranty against latent defects. Sec. 1769. One who sells or agrees to sell an article of his own manufacture thereby warrants it to be free from any latent defect, not disclosed to the buyer, arising from the process of manufacture, and also that neither he nor his agent in such manufacture has knowingly used improper materials therein. 6770. Thing hoitght for particular purpose. Sec. 1770. One who manufactures an article under an order for a particular purpose, warrants by the sale that it is reasonably fit for that purpose. 6771. When thing cannot he examined by buyer. Sec. 1771. One who sells or agrees to sell merchandise inaccessible to the examination of the buyer, thereby warrants that it is sound and merchantable. 6772. Trade-marks. Sec. 1772. One who sells or agrees to sell any article to which there is affixed or attached a trade-mark, thereby warrants that mark to be genuine and lawfully used. 6773. Other marks. Sec. 1773. One who sells or agrees to sell any article to which there is affixed or attached a statement or mark to express the quantity or quality thereof, or the place where it was, in whole or in part, produced, manufactured, or pre- pared, thereby warrants the truth thereof. 6774. Warranty, on sale of written instrument. Sec. 1774. One who sells or agrees to sell an instrument purporting to bind any one to the performance of an act, thereby warrants that he has no knowl- edge of any facts which tend to prove it worthless, such as the insolvency of any of the parties thereto, where that is material, the extinction of its obliga- tions, or its invalidity for any cause. [Amendment, approved March 30, 1874; Amendments 1873-4, 244; took effect July 1, 1874.<'" 6775. Warranty of provisions for domestic use. Sec 1775. One who makes a business of selling provisions for domestic use warrants by a sale thereof, to one who buys for actual consumption, that they are sound and wholesome. 6776. Warranty on sale of good ivill. Sec. 1776. One who sells the good will of a business thereby warrants that he will not endeavor to draw off any of the customers. 6777. War raiity upon judicial sale. Sec 1777. Upon a judicial sale, the only warranty implied is that the seller does not know that the sale will not pass a good title to the property. 6778. Effect of general warranty. Sec 1778. A general warranty does not extend to defects inconsistent there- in) The original eection after " warrants " had the its purport iipon all the parties thereto; and also war- following additional words: " the instrument fo be rants." what it purports to be, and to be binding according to 765 6778-6798 CIVIL CODE. with of whicli the buyer was then aware, or which were then easily discernible by him without the exercise of i)eculiar skill; but it extends to all other de- fects. CHAPTEE III. EIGHTS AND OBLIGATIONS OF THE BUYER. 6784. Price, token to be paid. Sec. 1784. A buyer must pay the price of the thing sold on its delivery, and must take it away within a reasonable time after the seller offers to deliver it. 6785. Iiight to inspect goods. Sec. 1785. On an agreement for sale, with warranty, the buyer has a right to inspect the thing sold, at a reasonable time, before accepting it; and may rescind the contract if the seller refuses to permit him to do so. 6786. JRiglUs in case of breach of loarranty. Sec. 178G. The breach of a warranty entitles the buyer to rescind an agree- ment for sale, but not an executed sale, unless the warranty was intended by the parties to operate as a condition. CHAPTER IV. SALE BY AUCTION. 6792. Sale by auction, what. Sec 1792. A sale by auction is a sale by public outcry to the highest bidder on the spot. 6793. Sale, when complete. Sec. 1793. A sale by auction is complete when the auctioneer publicly an- nounces, by the fall of his hammer, or in any other customary manner, that the thing is sold. 6794. Withdraical of bid. Sec. 1794. Until the announcement mentioned in the last section has been made, any bidder may withdraw his bid, if he does so in a manner reasonably sufficient to bring it to the notice of the auctioneer. 6795. Sale under xoritlen conditions. Sec. 1795. When a sale by auction is made ujoon written or printed conditions, such conditions cannot be modified by auy oral declaration of the auctioneer, except so far as they are for his own benefit. 6796. Rights of buyer upon sale xoilhout reserve. Sec. 179G. If, at a sale by auction, the auctioneer, having authority to do so, publicly announces that the sale will be without reserve, or makes any an- nouncement equivalent thereto, the highest bidder in good faith has an absolute right to the completion of the sale to him; and, upon such a sale, bids by the seller, or any agent for him, are void. 6797. J',y bidding. Sec. 1797. The employment by a seller of any person to bid at a sale by auction, without the knowledge of the buyer, without an intention on the part of such bidder to Ijuy, and on the part of the seller to enforce his bid, is a fraud upon the buyer, which entitles him to rescind his purchase. 6798. Auctioneer's niemorandnm of sale. Sec 1798. When property is sold by auction, an entry made by the auctioneer, in his sale-book, at the time of the sale, specifying the name of the person for whom he sells, the thing sold, the price, the terms of sale, and the name of the 7CG DEPOSIT. G798-6814 buyer, binds both the parties in the same manner as if made by themselves. [Amendmeyit, approved 31arch 30, 1874; Amendvients 1873-4, 244; took cffecl July 1, 1874.'^) TITLE II. 6804. Exchange, what. Sec. 1804. Exchange is a contract by which the parties mutually give, or agree to give, one thing for another, neither thing, or both things, being money only. 6805. Form of contract. Sec. 1805. The j^rovisions of section 1739 apply to all exchanges in which the value of the thing to be given by either party is two hundred dollars or more. 6806. Parties have rights and obligations of sellers and buyers. Sec 1806. The jorovisions of the title on sale apply to exchanges. Each party has the rights and obligations of a seller as to the thing which he gives, and of a buyer as to that which he takes. 6807. Warranty of money . Sec. 1807. On an exchange of money, each party thereby warrants the genu- ineness of the money given by him. TITLE III. Chapter I. Deposit in General 6813 II. Deposit foe Keeping 6833 III. Deposit for Exchange 6878 CHAPTEK I. DEPOSIT IN GENERAL. Article I. Natdbe and Creation of Deposit 6813 II. Obligations of the Depositary tJ822 AETICLE I. nature and creation of deposit. 6813. Deposit, kinds of. Sec. 1813. A deposit may be voluntary or involuntary; and for safe keeping or for exchange. 6814. Voluntary deposit, how made. Sec. 1814. A voluntary deposit is made by one giving to another, with his consent, the possession of personal property to keep for the benefit of the former, or of a third party. The person giving is called the depositor, and the person receiving the depositary. (a) OriBinal Bectlon- thing sold, the price, the termB of sale, and the name Sec. 1798. Whon property is Bold by auction, the of the buyer. A memorandum thus made binds both auctioneer, or his partner or clerli, may enter in a Bale the parties in the same manner as if made by them- boolL, at the time of the sale, a memorandum specify- selves. ing the name of the person for whom he boUs, the 767 6815-G827 CH'IL CODE. 6815. Involuntary deposit, hoiv made. Sec. 1815. An involuntary deposit is made: 1. By the accidental leaving or placing of personal property in the possession of any person, without negligence on the part of its owner; or, 2. In cases of fire, shipwreck, inundation, insurrection, riot, or like extraor- dinary emergencies, by the owner of personal property committing it, out of necessity, to the care of any person. 6816. Same. Sec. 1816. The person with whom a thing is deposited in the manner described in the last section is bound to take charge of it, if able to do so. [As to involuntary trust resulting from negligence, see j)0st, 7224:.] 6817. Deposit for safe keeping, xohai. Sec. 1817. A deposit for keeping is one in which the depositary is bound to return the identical thing dej^osited. 6818. Deposit for exchange, ichat. Sec 1818. A deposit for exchange is one in which the depositary is only bound to return a thing corresponding in kind to that which is deposited. ARTICLE II. OBLIGATIONS OF THE DEPOSITARY. 6822. Depositary must deliver on demand. Sec. 1822. A depositary must deliver the thing to the person for whose benefit it was deposited, on demand, whether the dejDOsit was made for a specified time or not, unless he has a lien upon the thing deposited, or has been forbidden or prevented from doing so by the real owner thereof, or by the act of the law, and has given the notice required by section 1825. 6823. No obligation to deliver without demand. Sec. 1823. A dejDOsitary is not bound to deliver a thing deposited without demand, even where the deposit is made for a s^DCcified time. 6824. Place of delivery. Sec. 1824. A depositary must deliver the thing deposited at his residence or place of business, as may be most convenient for him. 6825. Notice to owner of adverse claim. Sec. 1825. A depositary must give prompt notice to the person for whose benefit the dei)osit was made, of any proceedings taken adversely to his interest in the thing deposited, which may tend to excuse the depositary' from delivering the thing to him. 6826. Xofice to ovmer of thing wrongfully detained. Se<;. 182G. A depositary, who believes that a thing de^josited with him is wi'ongfully detained from its true owner, may give him notice of the dejjosit; and if within a reasonable time afterwards he does not claim it, and sufficiently establish his right thereto, and indemnify the depositary against the claim of the depositor, the depositaiy is exonerated from liability to the person to whom he gave the notice, upon returning the tbing to the depositor, or assuming, in good faith, a new obligation changing his j^osition, in respect to the thing, to his prejudice. 6827. Delivery of thing owned jointly , etc. Sec. 1827. If a thing deposited is owned jointly or in common by persons who cannot agree upon the manner of its deliveiy, the dej^ositary may deliver to each his proper share thereof, if it can be done without injury to the thing. 768 DEPOSIT. G833-G840 CHAPTEE II. DEPOSIT FOR KEEPING. Aeticle I. General Provisions G833 II Gratuitods Deposit V)H-i'k III. Storage 0^51 IV. Innkeepers 6859 V. Finding 086-1 ARTICLE I. GENERAL PROVISIONS. 6833. Depositor must indemnify depositary. Sec. 1833. A depositor must mdemnify the depositary: 1. For all damage caused to bim by the defects or vices of the thing de- posited; and, 2. For all expenses necessarily incurred by him about the thing, other than such as are involved in the nature of the undertaking. 6834. Obligation of depositary of animals. Sec. 1834. A dejDOsitary of living animals must provide them with suitable food and shelter, and treat them kindly. 6335. Obligations as to use of thing deposited. Sec. 1835, A depositary may not use the thing deposited, or permit it to be used, for any purpose, without the consent of the depositor. He may not, if it is purposely fastened by the depositor, open it without the consent of the latter, except in case of necessity. 6836. Liability for damage arising from %vrongful use. Sec. 1836. A depositary is liable for any damage happening to the thing deposited, during his wrongful use thereof, unless such damage must inevitably have hapjDened though |;he proj)erty had not been thus used. 6837. Sale of thing in danger of perishing. Sec. 1837. If a thing deposited is in actual danger of perishing before in- structions can be obtained from the depositor, the dejoositary may sell it for the best price obtainable, and retain the proceeds as a deposit, giving immediate notice of his proceedings to the depositor, 6838. Injury to, or loss of thing deposited. Sec. 1838. If a thing is lost or injured during its deposit, and the dejDositary refuses to inform the depositor of the circumstances under which the loss or injury occurred, so far as he has information concerning them, or willfully misrepresents the circumstances to him, the depositary is presumed to have willfully, or by gross negligence, j)ermitted the loss or injury to occur. 6839. Service rendered by depositary. Sec. 1839. So far as any service is rendered by a depositaiy, or required from him, his duties and liabilities are prescribed by the title on employment and service. 6840. Limitation of liability of depositing for negligence. Sec. 1840. The liability of a depositaiy for negligence cannot exceed the amount which he is informed by the depositor, or has reason to suppose, the thing deposited to be worth. [Amendment, apjiJ^oved 3Iarch 30, 1874; Amend- ments 1873-4, 244; took effect July 1, 1874.*''^ (a) The original section, instead of " cannot exceed," had the words " is limited to." 49 769 G844-G860 CIVIL CODE. ARTICLE II. GBATUITOUS DEPOSIT. 6844. Gratuitoui^ deposit, ^vhaf. Sec. 1844. Gratuitous deposit is a deposit for whicli the depositary receives no consideration beyond the mere possession of the thing deposited. 6845. Nature of involuntary deposit. Sec. 1845. An involuntary deposit is gratuitous, the depositary being entitled to no reward. 6846. Degrees of care required of gratuitous depositary. Sec. 184G. A gratuitous depositary must use, at least, slight care for the pres- ervation of the thing deposited. 6847. His duties cease, when. Sec. 1847. The duties of a gratuitous depositary cease: 1. Upon his restoring the thing deposited to its owner; or, 2. Upon his giving reasonable notice to the owner to remove it, and the owner failing to do so within a reasonable time. But an involuntary deposi- tary, vmder subdivision 2 of section 1815, cannot give such notice until the emergency which gave rise to the deposit is past. [ARTICLE III. STORAGE. 6851. Deposit for Idre. Sec. 1851. A deposit not gratuitous is called storage. The depositary in such case is called a depositary for hire. 6352. Degree of care required of depositary for hire. Sec. 1852. A depositary for hire must use at least ordinary care for the j)res- ervation of the thing deposited. 6853. Rate of compensation for fraction of a tveek, etc. Sec 1853. In the absence of a different agreement or usage, a depositaiy for hire is entitled to one week's hire for the sustenance and shelter of living ani- mals during any fraction of a week, and to half a month's hire for the storage of any other property during any fraction of a half month. 6854. Termination of deposit. Sec 1854. In the absence of an agreement as to the length of time during which a deposit is to continue, it may be terminated by the depositor at any time, and by the depositary upon reasonable notice. 6855. Same. Sec 1855. Notwithstanding an agreement resj)ecting the length of time dur- ing which a deposit is to continiae, it may be terminated by the dejDOsitor on paying all that would become due to the depositary in case of the deposit so continuing. ARTICLE IV. INNKEEPERS. 6859. Innkeeper's liability. Sec 1859. An innkeeper is liable for all losses of or injuries to j^ersonal prop- erty placed by his guests under his care, unless occasioned by an irresistible superhuman cause, by a public enemy, by the negligence of the owner, or by the act of some one whom he brought into the inn. 6860. Hon- exempted from liability. Sec 1860. If an innkeei^er keeps a fireproof safe, and gives notice to a guest, 770 DEPOSIT. G860-G8G3 either personally or by putting up a printed notice in a prominent place in tbe room occupied by the guest, that he keeps such a safe, and will not be liable for money, jewelry, documents, or other articles of unusual value and small com- pass, unless placed therein, he is not liable, except so far as his own acts con- tribute thereto, for any loss of or injury to such articles, if not deposited with him, and not required by the guest for present use. 6861. Liens by hotel, inn, hoarding-house, and lodging-house keepers. Sec. 1861. Hotel, inn, boarding-house and lodging-house keepers shall have a lien upon the baggage and other j^roperty of value of their guests, or boarders, or lodgers, brought into such hotel, inn, or boarding or lodging-hoixse, by such guests, or boarders, or lodgers, for the proper charges due, from such guests, or boarders, or lodgers, for their accommodation, board, and lodging, and room rent, and such extras as are furnished at their request, with the right to the possession of such baggage or other propert}' of value, until all such charges are j)aid. [Neio section, aioproved April 1, 187G; Amendments 1875-G, 78: look effect from imssage. 6862. Sale of unclaimed baggage for storage, etc. Sec. 1862. Whenever any trunk, carjpet-bag, valise, box, bundle, or other baggage has heretofore come, or shall hereafter come into the possession of the keeper of any hotel, inn, boarding or lodging-house, as such, and has remained or shall remain unclaimed for the period of six months, such keejDer may pro- ceed to sell the same at public auction, and out of the proceeds of such sale may retain the charges for storage, if any, and the expenses of advertising and sale thereof; but no such sale shall be made until the expiration of four weeks from the first publication of notice of such sale in a newspaper published in or nearest the cit}^ town, village, or place in which said hotel, inn, boarding or lodging-house is situated. Said notice shall be published once a week for four successive weeks, in some newspaper, daily or weekly, of general circulation, and shall contain a description of each trunk, carpet-bag, valise, box, bundle, or other baggage, as near as may be, the name of the owner, if known, the name of such keeper, and the time and place of such sale; and the expenses incurred for advertising shall be a lien upon such trunk, carpet-bag, valise, box, bundle, or other baggage, in a ratable proj^ortion, according to the value of such piece of projoerty, or thing, or article sold; and in case any balance aris- ing from such sale shall not be claimed by the rightful owner within one week from the day of said sale, the same shall be paid into the treasury of the county in which such sale took place; and if the same be not claimed by the owner thereof or his legal representatives within one year thereafter, the same shall be paid into the general fund of said county. [New section, ap)proved April 1, 1876; Amendments 1K1^~Q>, 78; took eff'ect from passage. 6863. Posting of statement of charges, etc. Sec. 1863. Every keeper of a hotel, inn, boarding or lodging-house, shall post in a conspicuous place in the office or public room, and in every bedroom of said hotel, boarding-house, inn, or lodging-house, a printed copy of this sec- tion, and a statement of charge or rate of charges by the day, and for meals or items furnished, and for lodging. No charge or sum shall be collected or received by any such person for any service not actually rendered, or for any item not actually delivered, or for any greater or other sum than he is entitled to by the general rules and regulations of said hotel, inn, boarding or lodging- house. For any violation of this section, or any j)rovision herein contained, the offender shall forfeit to the injured party three times the amount of the sum charged in excess of what he is entitled to. [New section, approved April 1, 1876; Amendments 1875-6, 78; took effect from passage. 771 68G4-6878 CFV^IL CODE. AETICLE Y. FINDING. 6864. OhUgaiion of finder. Sec. 18G4. One who finds a thing lost is not bound to take charge of it, but if he does so he is thenceforward a depositary for the owner, with the rights and obligations of a depositary for hire. 6865. Finder to notify owner. Skc. 1865. If the finder of a thing knows or suspects who is the owner, he must, with reasonable diligence, give him notice of the finding; and if he fails to do so, he is liable in damages to the owner, and has no claim to any reward offered by him for the recovery of the thing, or to any compensation for his trouble or expenses. 6866. Claimant to jyrove oivnersMp. Sec. 186G. The finder of a thing may, in good faith, before gi\dng it up, reqviire reasonable proof of ownership from any person claiming it. 6867. Reward, etc., to finder. Sec. 1867. The finder of a thing is entitled to compensation for all expenses necessarily incurred by him in its preservation, and for any other service necessarily performed by him about it, and to a reasonable reward for keeping it. 6868. Finder may put thing found on storage. Sec 1868. The finder of a thing may exonerate himself from liability at any time by placing it on storage with any responsible person of good character, at a reasonable expense. 6869. When finder may sell the thing found. Sec 1869. The finder of a thing may sell it, if it is a thing which is com- monly the subject of sale, when the owner cannot, with reasonable diligence, be found, or, being found, refuses upon demand to pay the lawful charges of the finder, in the following cases: 1. "When the thing is in danger of perishing, or of losing the greater part of its value; or, 2. AVhen the lawful charges of the finder amount to two thirds of its value. 6870. How sale is to be made. Sec 1870. A sale under the provisions of the last section must be made in the same manner as the sale of a thing pledged. 6871. Surrender of thing to the finder. Sec 1871. The owner of a thing found may exonerate himself from the claims of the finder by sui-rendering it to him in satisfaction thereof. 6872. Thing abandoned. Sec 1872. The provisions of this article have no application to things which have been intentionally abandoned by their owners. CHAPTER III. DEPOSIT FOR EXCHANGE. G878. Jielatiorts of the parties. Sec 1878. A deposit for exchange transfers to the dei:)Ositary the title to the thing deposited, and creates between him and the depositor the relation of debtor and creditor merely. 772 LOAN. C884-G894 TITLE IV. Chapter I. Loan ron Use 0884 II. Loan for Exchange ; G902 III. Loan of Money G912 CHAPTER I. LOAN FOR USE. 6884. Loan, what. Sec. 1884. A loan for use is a contract by which one gives to another the temporary possession and use of personal property, and the latter agrees to re- turn the same thing to him at a future time, without reward for its use. 6885. Title to property lent. Sec. 1885. A loan for use does not transfer the title to the thing; and all its increase during the period of the loan belongs to the lender. 6886. Care required of bon^ower. Sec. 1886. A borrower for use must use great care for the preservation in safety and in good condition of the thing lent. 6887. Same. Sec. 1887. One who borrows a living animal for use, must treat it with great kindness, and provide everything necessary and suitable for it. 6888. Degree of skill. Sec. 1888. A borrower for use is bound to have and to exercise such skill in the care of the thing lent as he causes the lender to believe him to possess. 6889. Borrower , when to repair injuries. Sec. 1889. A borrower for use must repair all deteriorations or injuries to the thing lent, which are occasioned by his negligence, however slight. 6890. Use of thing lent. Sec 1890. The borrower of a thing for use may use it for such purposes only as the lender might reasonably anticipate at the time of lending. 6891. Eelending forbidden. Sec 1891. The borrower of a thing for use must not part with it to a third person, without the consent of the lender. 6892. Borrower, ivhen to bear expenses. Sec 1892. The borrower of a thing for use must bear all its expenses during the loan, except such as are necessarily incurred by him to preserve it from unexpected and unusvial injury. For such expenses he is entitled to compen- sation from the lender, who may, however, exonerate himself b}' surrendering the thing to the borrower. 6893. Lender liable for defects. Sec. 1893. The lender of a thing for use must indemnify the borrower for damage caused by defects or vices in it, which he knew at the time of lending, and concealed from the borrower. 6894. Lender may require return of thing lent. Sec 1894. The lender of a thing for use may at any time require its return, even though he lent it for a specified time or purpose. But if, on the faith of such an agreement, the borrower has made such arrangements that a return of the thing before the period agreed upon would cause him loss, exceeding the 773 G891-6914 CIVIL CODE. benefit derived l\y Lim from the loan, the lender must indemnify him for such loss, if he compels such return, the borrower not having in any manner violated his duty. 6895. Wlien returnahle witlioul demand. Sec. 1895. If a thing is lent for use for a sj^ecified time or purpose, it must be returned to the lender without demand as soon as the time has expired, or the purpose has been accomplished. In other cases it need not be returned until demanded. 6896. Place of return. Sec. 189C. The borrower of a thing for use must return it to the lender at the place contemi^lated b}- the parties at the time of lending; or if no particular place was so contemplated by them, then at the place where it Avas at that time. CHAPTEK II. LOAN FOR EXCHANGE. 6902. Loan for exchange, what. Sec. 1902. A loan for exchange is a conti'act by which one delivers personal property to another, and the latter agrees to return to the lender a similar thing at a future time, without reward for its use. 6903. Same. Sec 1903. A loan, which the borrower is allowed by the lender to treat as a loan for use, or for exchange, at his option, is subject to all the provisions of this chapter. 6904. Title to property lent. Sec 1904. By a loan for exchange the title to the thing lent is transferred to the borrower, and he must bear all its expenses, and is entitled to all its increase. 6905. Contract cannot he modifed by lender. Sec 1905. A lender for exchange cannot require the borrower to fulfill his obligations at a time, or in a manner, different from that which Avas originally agreed upon. 6906. Certain nections applicable. Sec. 1906. Sections 18D3, 1895, and 189G, apply to a loan for exchange. CHAPTER III. LOAN OF MONEY. 6912. Loan of money. Sec. 1912. A loan of money is a contract by which one delivers a sum of money to another, and the latter agrees to return at a future time a sum equiva- lent to that which he borrowed. A loan for mere use is governed by the chap- ter on loan for use. 6913. Loan to be repaid in current money. Sec. 1913. A borrower of money, unless there is an express contract to the contrary, must pay the amount due in such money as is current at the time when the loan becomes due, Avhether such money is worth more or less than the actual money lent. 6914. Loan, presumed to be on interest. Sec. 1914. Whenever a loan of money is made, it is presumed to be made upon interest, unless it is otherwise expressly stipulated at the time in Avriting. [Amendment, approved Marcli 30, 1874; Amendments 1873-4, 244; took effect July 1, 1874.<'' (fi) Original section: without reward, but is i)rtBume(l to bo made for re- 8ec. 1314. A loan of money may be made with or ward. 774 HIRING. 6915-G925 6915. Interest defined. Sec. 1915. Interest is the compensation allowed by law or fixed by the parties for the use, or forbearance, or detention of money. [Avwudmod, approved March 30, 1874; Amendments 1873-4, 245; took effect July 1, 1874."' > 6916. Annual rate. Sec. 191 G. When a rate of interest is prescribed by a law or contract, without specifying the period of time by which such rate is to be calculated, it is to be deemed an annual rate. 6917. Legal interest — Computation. Sec. 1917. Unless there is an express contract in writing- fixing a different § 1917. Change ''ten," in third line, to "seven." [In ef- ' ten per cent, per annum, feet, April 16, 1878.] ^^^^p^ ^ judgment, and on moneys lent or due on any settlement of accounts, from the da}'^ on which the balance is ascertained, and on moneys received to the use of another and detained from him. In the computation of interest for a period less than a year, three hundred and sixty days are deemed to constitute a year. [Amend- ment, approved March 30, 1874; Aynendmenls'i^l'i-4., 245; took effect July 1, 1874.*"^ 6918. Same. Sec. 1918. Parties may agi-ee in writing for the payment of any rate of interest, and it shall be allowed, according to the terms of the agreement, until the entry of judgment. 6919. Interest becomes part of principal, when. Sec. 1919. The j^arties may, in any contract in writing whereby any debt is secured to be paid, agree that if the interest on such debt is not punctually paid, it shall become a i^art of the principal, and thereafter bear the same rate of interest as the principal debt. 6920. Interest on judgment. Sec. 1920. Interest is payable on judgments recovered in the courts of this state, at the rate of seven per cent, per annum, and no greater rate, but such interest must not be comj)ounded in any manner or form. [Amendment, approved March 30, 1874; Amendments 1873-4, 245; took effect July 1, 1874.'^' TITLE Y. Iniino. Chapter I. Hiring in General 6925 II. Hiring of Real Property 6941 III. Hiring of Personal Property 6955 CHAPTER I. HIRING IN GENERAL. 6925. Hiring, tvhat. Sec. 1925. Hiring is a contract by which one gives to another the temporary possession and use of property, other than money, for reward, and the latter agrees to return the same to the former at a future time. (a) Original Bection: tereet for lesB than a year, three hundred and sixty days Sec. 1915. Reward for the loan, forbearance, cruse of are deemed to ronstitute a year. money or Its equivalent, is called interest. (c) Original sertion: (6) Original section: Seo. 1920. No judgment in any court of this state Seo. 1917. Under an obligation to pay interest, no shall draw interest at a rate to exceed seven per cent. rate being specified, interest is payable at the rate of per annum. Interest must not be compounded in any ten per cent, per annum, and in like proportion for a manner or form on a judgment. longer or shorter time ; but in the computation of in- 775 6926-G935 CH'IL CODE. 6926. Frodiicfs of thing. Sec. 1926. The products of a thing- hired, during the hiring, belong to the hirer. 6927. Quiet jiossession. Sec. 1927. An agreement to let upon hire binds the letter to secure to the hirer the quiet possession of the thing hired during the term of the hiring, against all persons lawfully claiming the same. 6928. Degree of care, etc., onpaiH of hirer. Sec. 1928. The hirer of a thing must use ordinary care for its preservation in safety and in good condition. 6929. Mast repair injuries, etc. Sec. 1929. The hirer of a thing must repair all deteriorations or injuries thereto occasioned by his ordinary negligence. 6930. Thingletforaj)(oiicularj)urpose. Sec 1930. When a thing is let for a particular purpose the hirer must not use it for qmj other purpose; and if he does, the letter may hold him respon- sible for its safety during such use in all events, or may treat the contract as thereby rescinded. 6931. When letter may terminate the hiring. Sec. 1931. The letter of a thing ma}' terminate the hiring and reclaim the thing before the end of the term agreed uiDon : 1. "When the hirer uses or permits a use of the thing hired in a manner con- trary to the agreement of the parties; or, 2. "When the hirer does not, within a reasonable time after request, make such repairs as he is bound to make. 6932. When hirer may terminate the hiring. Sec 1932. The hirer of a thing may terminate the hiring before the end of the term agreed upon: 1. "When the letter does not, within a reasonable time after request, fulfill his obligations, if any, as to j^lacing and securing the hirer in the quiet posses- sion of the thing hired, or putting it into good condition, or repairing; or, 2. "When the greater part of the thing hired, or that j^art which was and which the letter had at the time of the hiring reason to believe was the material inducement to the hirer to enter into the contract, perishes from any other cause than the ordinary negligence of the hirer. 6933. When hiring terminates. Sec 1933. The hiring of a thing terminates: 1. At the end of the tex-m agreed upon; 2. By the mutual consent of the parties; 3. By the hirer acquiring a title to the thing hired superior to that of the letter; or, 4. By the destruction of the thing hired. 6934. Wlien terminated by death, etc., of partij. Sec 1934. If the hiring of a thing is terminable at the pleasure of one of the parties, it is terminated by notice to the other of his death or incapacity to contract. In other cases it is not terminated thereby. 6935. Apportionment of hire. Skc 1935. When the hiring of a thing is terminated before the time origi- nally agreed upon, the hirer must pay the due proportion of the hire for such use as he has actually made of the thing, unless such use is merely nominal, and of no benefit to him. 77G HIRING. 6941-G947 CHAPTER II. HIRING OF REAL TROPERTY. 6941. Lessor to make dwelling-house fd for its purpose. Seo. 1941. The lessor of a building intended for the occupation of human beings must, in the absence of an agreement to the contrary, put it into a con- dition fit for such occupation, and repair all subsequent dilapidations thereof, "which render it untenantable, except such as are mentioned in section nineteen hundred and twenty-nine. [Amendment, approved March 30,1874; Amendments 1873-4, 245; took effect July 1, 1874.^"' 6942. When lessee may make repairs, etc. Sec. 1942. If within a reasonable time after notice to the lessor, of dilapida- tions which he ought to repair, he neglects to do so, the lessee may repair the same himself, where the costs of such repairs do not require an expenditure greater, than one month's rent of the premises, and deduct the expenses of such repairs from the rent, or the lessee may vacate the premises, in which case he shall be discharged from further payment of rent, or performance of other con- ditions. [Amendment, ajyproved Ilarch SO, 181 4t; Amendments ISIS-A, 246; took effect July 1, 1874.<''^ 6943. 1'erm of hiring when no limit is fixed. Sec. 1943. A hiring of real proj)erty, other than lodgings and dwelling-houses, in places where there is no usage on the subject, is presumed to be for one year from its commencement, unless otherwise expressed in the hiring. 6944. Hiring of lodgings for indefinite term. Sec. 1944. A hiring of lodgings or a dwelling house for an unspecified term is presumed to have been made for such length of time as the parties adopt for the estimation of the rent. Thus a hiring at a monthly rate of rent is presumed to be for one month. In the absence of any agreement respecting the length of time or the rent, the hiring is presumed to be monthly. 6945. Renewal of lease by lessee's continued possession. Sec. 1945. If a lessee of real property remains in possession thereof after the expiration of the hiring, and the lessor accepts rent from him, the parties are •presumed to have renewed the hiring on the same terms and for the same time, not exceeding one month when the rent is payable monthly, nor in any case one year. 6946. Notice to quit. Sec 1946. A hiring of real property, for a term not specified by the parties, is deemed to be renewed as stated in the last section, at the end of the term implied by law, unless one of the parties gives notice to the other of his inten- tion to terminate the same, at least as long before the expiration thereof as the term of the hiring itself, not exceeding one month. 6947. Bent, when payable. Sec 1947. AVhen there is no usage or contract to the contrary, rents are pay- able at the termination of the holding, when it does not exceed one year. If the holding is by the day, week, month, quarter, or year, rent is payable at the termination of the respective periods, as it successively becomes due. (a) Original section: (6) Original eertion: Sec. 1941. The lessor of a building intended for the Sec. 1'J4'2. If, within a reaeonable time after notice occupatinn of human beings must put it into a condi- to the lessor, of dilai^dations wbicli he ought to re- tion lit for that inirpose, and must repair all subsequent pair, bo neglects to do so, the lessee may repair dilapidations thereof except such as are mentioned in the same himself, and deduct the expenses of such section 19^9. repairs from the rent, or otherwiee recover it trom the lessor. 777 6948-G959 CIVIL CODE. 6948. Attornment of a tenant to a i^tranger. Sec. 194:8. The attornment of a tenant to a stranger is Toid, unless it is made with the consent of the landlord, or in consequence of a judgment of a coixrt of comjDetent jurisdiction. 6949. Tenant must deliver notice served on Mm. Sec. 1949'. Every tenant who receives notice of any proceeding to recover the real i^roperty occupied by him, or the possession thereof, must immediately inform his landlord of the same, and also deliver to the landlord the notice, if in writing, and is responsible to the landlord for all damages which he may sustain by reason of any omission to inform him of the notice, or to deliver it to him if in writiug. [Amendment, approved IlarchdO, 1874; Amendments 1873-4, 24G; took efect July 1, 1874.^^' 6950. Letting parts of rooms forbidden. Sec. 1950. One who hires part of a room for a dwelling is entitled to the whole of the room, notwithstanding any agreement to the contrary; and if a landlord lets a room as a dwelling for more than one family, the person to whom he first lets any part of it is entitled to the possession of the whole room for the term agreed ujion, and every tenant in the biiilding, under the same landlord, is relieved from all obligation to pay rent to him while such double letting of any room continues. CHAPTEE III. HIRING OF PERSONAL PROPERTY. 6955. OhUgafions of letter of piersonal property . Sec. 1955. One who lets personal property must deliver it to the hirer, secure his quiet enjoyment thereof against all lawful claimants, put it into a condition fit for the purpose for which he lets it, and rei:)air all deteriorations thereof not occasioned by the fault of the hirer and not the natural result of its use. 6956. Ordinary expenses. Sec. 195G. A hirer of personal property must bear all such expenses concern- ing it as might naturally be foreseen to attend it during its use by him. All other expenses must be borne b}^ the letter. 6957. Extraordinary expenses. Sec 1957. If a letter fails to fulfill his obligations, as prescribed by section 1955, the hirer, after giving him notice to do so, if such notice can conveniently be given, may expend any reasonable amount necessary to make good the letter's default, and may recover such amount from him. 6958. Return oftJnng hired. Sec. 1958. At the expiration of the term for which personal property is hired, the hirer must return it to the letter at the place contemplated by the parties at the time of hiring; or, if no particular place was so contemplated by them, at the place at which it was at that time. 6959. Charter party, v:hat. Sec 1959. The contract by which a ship is let is termed a charter-party. By it the owner may either let the capacity or burden of the shii^, continuing the employment of the owner's master, crew, and equipments, or may surrender the entire ship to the charterer, who then provides them himself. The master or a part owner may be a charterer. (a) The original Bection couHiBted of the firfit clause alone, down to and including the word " same." 778 SEKVICE. G965-G976 TITLE YI. Chapter I. Service with Employment G9G5 II. Particular Employments 7009 III, Service without Employment 7078 CHAPTEE I. SERVICE WITH EMPLOYMENT. Article I. Dkfinition of Employment 6965 II. Obligations of thk Employeu 6969 III. Obligations of the Employee 6975 IV, Teemination of Employment 699G ARTICLE I, definition of employment, 6965. Employment, what. Sec. 1965, The contract of emiiloyment is a contract by wLicli one, who is called the employer, engages another, who is called the employee, to do some- thing for the benefit of the employer, or of a third person, ARTICLE n, obligations of the employer. 6969. When employer must indemnify employee. Sec 1969, An employer must indemnify his employee, except as prescribed in the next section, for all that he necessarily expends or loses in dii'ect conse- quence of the discharge of his duties as such, or of his obedience to the direc- tions of the employer, even though unlawful, unless the employee, at the time of obeying such directions, believed them to be unlawful. 6970. When not. Sec 1970. An employer is not bound to indemnify his emploj-ee for losses suffered by the latter in consequence of the ordinary risks of the business in which he is employed, nor in consequence of the negligence of another person, employed by the same employer in the same general business, unless he has neglected to use ordinary care in the selection of the culpable employee. 6971. Employer to indemnify for his own negligence. Sec 1971, An employer must in all cases indemnify his employee for losses caused by the former's want of ordinary care, ARTICLE III, obligations of the employee. 6975, Duties of gratuitous employee. Sec 1975, One who, without consideration, undertakes to do a service for another, is not bound to perform the same, but if he actually enters upon its performance, he must use at least slight care and diligence therein. 6976. ^a?7ie. Sec 1976. One who, by his own special request, induces another to intrust him with the performance of a service, must perform the same fully. In other cases, one w^ho undertakes a gratuitous service may relinquish it at any time, 779 6977-G9SG CR^IL CODE. 6977. Same. Sec. 1977. A gratuitous employee, who accepts a written power of attorney, must act under it so long as it remains in force, or until he gives notice to his employer that he will not do so, 6978. Duties of employee for reward. Sec. 1978. One who, for a good consideration, agrees to serve another, must perform the service, and must use ordinary care and diligence therein, so long as he is thus employed. 6979. Duties of employee for Im oicn benefit. Sfx. 1979. One who is employed at his own request to do that which is more for his own advantage than for that of his employer, must use great care and diligence therein to protect the interest of the latter. 6980. Contracts for service limited to tivo years. Skc. 1980. A contract to render personal sei-vice, other than a contract of apprenticeship, as provided in the chapter on master and servant, cannot be enforced against the employee beyond the term of two years from the commence- ment of service under it;, but if the employee voluntarily continues his service under it beyond that time, the contract may be referred to as affording a pre- sumptive measure of the compensation. 6981. Employee, duty of. Sec. 1981. An emjoloyee must substantially comply with all the directions of his employer concerning the service on which he is engaged, except where such obedience is impossible or unlawful, or would impose new and unreasonable biu'dens upon the employee. [Amendment, approved March 30, 1874; Amend- ments 1873-4, 246; took effect July 1, 1874.'"^ 6982. Employee to conform to usage. Sec 1982. An employee must perform his sei^ice in conformity to the usage of the place of performance, unless otherwise directed by his employer, or unless it is impracticable, or manifestly injurious to his employer to do so. 6983. Degree of skill required. Sec. 1983. An employee is bound to exercise a reasonable degree of skill, unless his employer has notice, before employing him, of his want of skill. 6984. Must use skill. Sec. 1984. An employee is always bound to use such skill as he jDossesses, so far as the same is required, for the service specified. [Amendment, approved March 30, 1874; Amendments 1873-^, 247; took efj'ect July 1, 1874."" 6985. WJiut belongs to employer. Sec. 1985. Everything which an employee acquires by virtue of his emploj'- ment, except the compensation, if any, which is due to him from his employer, belongs to the latter, whether acquired lawfully or unlawfully, or during or after the expiration of the term of his emploj'ment. 6986. Duly to account. Sec. 198G. An employee must, on demand, render to his employer just accounts of all his transactions in the course of his service, as often as may be (a) Ori^nal section: cousulted, and in which non-compliance is judged by Heo I'JHl. An cinployt'e muKt BnbHtantinlly comply the employee in good faith, and in the exercise of rea- ■with oil the directions of his employer c 7121. Carrier, how exonerated from liahilUij. Sec. 2121. If a consignee does not accept and remove freight within a rea- sonable time after the carrier has fulfilled his obligation to deliver, or duly ofiered to fulfill the same, the carrier may exonerate himself from further liability by jjlaciug the freight in a suitable warehouse, on storage, on account of the consignee, and giving notice thereof to him. [Amendment, approved March 30, 1874; Amendments 1873-4, 248; took effect July 1, 1874."'^ 7122. [Sec. 2122'"^ was repealed by act ajjproved March 30, 1874; Amendments 1873-4, 248; took effect July 1, 1874.] ARTICLE III. BILL OF LADING. 7126. ^(7/ of lading, what. Sec. 212G. A bill of lading is an instrument in writing, signed by a carrier or his agent, describing the freight so as to identify it, stating the name of the consignor, the terms of the contract for carriage, and agreeing or directing that the freight be delivered to the order or assigns of a specified person at a sj^ecified place. 7127. Bill of lading negotiable. Sec 2127. All the title to the freight which the first holder of a bill of lading had when he received it, passes to every subsequent indorsee thereof in good faith and for value, in the ordinary course of business, vdth. like effect and in like manner as in the case of a bill of exchange. 7128. Same. Sec. 2128. When a bill of lading is made to "bearer," or in equivalent terms, a simple transfer thereof, by delivery, conveys the same title as an indorsement. 7129. E(f<'i-t of hill of lading on rights, etc., of carrier. Sec 2129. A bill of lading does not alter the rights or obligations of the carrier, as defined in this chapter, unless it is plainly inconsistent therewith. 7130. ]>ilh of lading to he given to consignor. Sec 2130. A canier must subscribe and deliver to the consignor, on demand, any reasonable number of bills of lading, of the same tenor, expressing truly the original contract for carriage; and if he refuses to do so, the consignor may take the freight from him, and recover from him, besides, all damage thereby occasioned. 7131. Carrier exonerated by delivery according to bill of lading. Sec 2131. A can-ier is exonerated from liability for freight by deliveiy thereof, in good faith, to any holder of a bill of lading therefor, properly in- dorsed, or made in favor of the bearer. (a) The original section did not have the last sen- (c) Repealed Bectlon: tence, find inBtead of " ■warebouHc-man " it had the word Skc. 21'2'i. If a I'ouBignee of freight cannot with rea- "CHiTic-r." BoniiMi- (lili(,'ciii-c be found, tlie carrier may place it in (fc) The original section (lid not have the wordB " on ii Biiil.iM'- wiU'lMnisc Icpr liis account, but must give account of the conBignee." notice thereof to the cousiguor. 790 CARRIAGE. 7132-7148 7132. Carrier may demand surrender of MR of lading before delivery. Sec. 2132. When a carrier lias given a bill of lading, or other instrument sub- stantially equivalent thereto, he may require its surrender, or a reasonable indemnity against claims thereon, before delivering the freight. ARTICLE IV. FREIGHTAGE. 7136. When freightage in to he paid. Sec. 2136. A carrier may require his freightage to be paid upon his receiving the freight; but if he does not demand it then, he cannot until he is ready to deliver the freight to the consignee. 7137. Consignor, ichen liable for freightage. Sec. 2137. The consignor of freight is jn-esumed to be liable for the freight- age; but if the contract between him and the carrier provides that the consignee shall pay it, and the carrier allows the consignee to take the freight, he cannot afterwards recover the freightage from the consignor, 7138. Consignee, when liable. Sec. 2138. The consignee of freight is liable for the freightage, if he accepts the freight with notice of the intention of the consignor that he shovild pay it. 7139. Natural increase of freight. Sec. 2139. No freightage can be charged upon the natural increase of freight. 7140. Apportionment by cordract. Sec. 2140. If freightage is apportioned by a bill of lading or other contract made between a consignor and carrier, the carrier is entitled to payment, according to the apportionment, for so much as he delivers. 7141. Same. Sec. 2141. If a part of the freight is accepted by a consignee, without a specific objection that the rest is not delivered, the freightage must be appor- tioned and paid as to that part, though not apportioned in the oiiginal contract. 7142. Apportionment according to distance. Sec. 2142. If a consignee voluntarily receives freight at a place short of the one appointed for delivery, the carrier is entitled to a just proportion of the freightage, according to distance. If the carrier, being ready and willing, offers to complete the transit, he is entitled to the full freightage. If he does not thus offer comj^letion, and the consignee receives the freight only from necessity, the carrier is not entitled to any freightage. 7143. Freight carried further than agreed, etc. Sec. 2143. If freight is carried further, or more expeditiously, than was agreed upon by the parties, the carrier is not entitled to additional compensation, and cannot refuse to deliver it, on the demand of the consignee, at the place and time of its arrival. 7144. Carrier's lien for freightage. Sec. 2144. A carrier has a lien for freightage, which is regulated by the title on liens. ARTICLE V. GENERAL AVERAGE. 7148. Jettison and general average, xchat. Sec. 2148. A carrier by water may, when in case of extreme peril it is necessary for the safety of the ship or cargo, throw overboard, or otherwise sacrifice, any or all of the cargo or appurtenances of the ship. Throwing property overboard 791 7148-7161 CmL CODE. for such pnii-)Ose is called jettison, and the loss incurred thereby is called a general average loss. 7149. Order of jettison. Sec. 2149. A jettison must begin with the most bulky and least valuable article, so far as possible. 7150. By whom made. Sec. 2150. A jettison can be made only by authority of the master of a ship, except in case of his disability, or of an oveiTuling necessity, when it may be made by any other person. 7151. Zo.^.9, hoio borne. Sec. 2151. The loss incurred by a jettison, when lawfully made, must be borne in due proportion by all that part of the ship, appurtenances, freightage, and cargo for the benefit of which the sacrifice is made, as well as by the owner of the thing sacrificed. 7152. General average loss, how adjusted. Sec. 2152. The proj^ortions in which a general average loss is to be borne must be ascertained by an adjustment, in which the owner of each separate interest is to be charged with such proportion of the value of the thing lost as the value of his i^art of the iDrojDcrty aifected bears to the value of the whole. But an adjustment made at the end of the voyage, if valid there, is valid every- where. 7153. Values, how ascertained. Sec. 2153. In estimating values for the jDurj^ose of a general average, the ship and appurtenances must be valued as at the end of the voyage, the freight- age at one half the amount due on delivery, and the cargo as at the time and place of its discharge; adding, in each case, the amount made good by contri- bution. 7154. Tilings stowed on deck. Sec 2154. The owner of things stowed on deck, in case of their jettison, is entitled to the benefit of a general average contribution only in case it is usual to stow such things on deck upon such a voyage. 7155. Application of the foregoing rules. Sec 2155. The rules herein stated concerning jettison are equally ai^plicable to every other voluntary sacrifice of property on a ship, or expense necessarily incurred, for the preservation of the ship and cargo from extraordinary perils. CHAPTEE IV. CARRIAGE OF MESSAGES. 7161. Ohligalions of carrier of messages. Skc 21G1. A carrier of messages for reward, other than by telegraph, must deliver them at the place to which they are addressed, or to the person for whom they are intended. Such carrier, by telegraph, must deliver them at such place and to such person, provided the place of address, or the person for whom they are intended, is within a distance of two miles from the main office of the carrier in the city or town to which the messages are transmitted, and the carrier is not required, in making the delivery, to j^ay on his route toll or ferriage; but for any distance beyond one mile from such office, comjionsation may be charged for a messenger employed by the carrier. [Amendment, ap- proved March 30, 1874; Amendments 1873-4, 248; took effect July 1, 1874.^^> (a) The original Bection conHibtcd of tUo first eeutence aloue, leaving out the words " other than by telegraph.' 792 CAKRIAGE. 71G2-7175 7162. Care and diligence required. Sec. 21G2. A carrier of messages for reward must use great care and diligence in the transmission and delivery of messages. [Amendment, approved March 30, 1874; Amendments 1873-4, 249 j took effect Juhjl, 1874.^''^ CHAPTER V. COMMON CAllRIERS. Article I. Common Carrikks in Genkeal 71G8 II. Common Carriers of Persons 7180 III. Common Carriers of Property 7194 IV. Common Carriers of Messages 7207 ARTICLE I. COMMON CAKRIEKS IN GENERAL. 7168. Common carrier, what. Sec. 21G8. Every one who offers to the public to carry persons, property, or messages, excepting only telegraphic messages, is a common carrier of whatever he thus offers to carry. [Amendment, approved March 30, 1874; Amendments 1873-4, 249; took effect July 1, 1874.^*> 7169. Obligation to accept freight. Sec. 2169. A common carrier must, if able to do so, accept and carry what- ever is offered to him, at a reasonable time and place, of a kind that he under- takes or is accustomed to carry. 7170. Obligation not to give preference. Sec. 2170. A common carrier must not give preference, in time, price, or otherwise, to one person over another, except where expressly authorized by statute. 7171. What preferences he must give. Sec. 2171. A common carrier must always give a preference in time, and may give a j)reference in price, to the United States and to this state. 7172. 3Iust start on time. Sec. 2172. A common carrier must start at such time and place as he announces to the public, unless detained by accident or the elements, or in order to connect with carriers on other lines of travel. [Amendment, approved March 30, 1874; Amendments 1873-4, 249; took effect July 1, 1874."=> 7173. Compensation. Sec 2173. A common carrier is entitled to a reasonable compensation and no more, which he may require to be paid in advance. If payment thereof is re- fused, he may refuse to carry. 7174. Obligations, how limited. Sec 2174. The obligations of a common carrier cannot be limited by general notice on his i)art, but may be limited by special contract. [Amendment, ap- proved March 30, 1874; Amendments 1873-4, 249; took effect July 1, 1874.*"' 7175. Certain agreements void. Sec 2175. A common carrier cannot be exonerated, by any agreement made (a) The original gectioB had an additional sentence (d) Original eection: as follows: "A carrier liy telegraph must use the ut- Sec. 217-t. The rights and obligations of a common most diligence therein." carrier cannot be altered by notice on his part, or by (6) The original section did not have the -words "ex- any other means, except a written agreement between cepting only telegraphic messages." him and the person with whom he deals. (c) The original section consisted of the first clause alone, down to and including the words " to the pub- lic." 793 7175-7181 Cn^IL CODE. in anticipation thereof, from liability for the gross negligence, fraud, or willful wrong of himself or his servants. 7176. Wrllfc7i contract carrier. Sec. 2176. A passenger, consignor, or consignee, by accepting a ticket, bill of lading, or written contract for carriage, with a knowledge of its terms, assents to the rate of hire, the time, place, and manner of delivery therein stated; and also to the limitation stated therein upon the amount of the carrier's lialnlity in case property cariied in packages, trunks, or boxes, is lost or injured, when the value of such jjroperty is not named; and also to the limitation stated therein to the earner's liability for loss or injury to live animals carried. But his assent to any other modification of the carrier's obligations contained in such instru- ment can be manifested only by his signature to the same. [Ameruhnent, ap- proved March 30, 1874; Amendments 1873-4, 249; took effect July 1, 1874."" 7177. When not liable for loss. Sec 2177. A common carrier is not responsible for loss or miscarriage of a letter, or j^ackage having the form of a letter, containing money or notes, bills of exchange, or other paj^ers of value, unless he be informed at the time of its receipt of the value of its contents. [Neiv section, approved March 30, 1874; Amendments 1873-4, 250; took effect July 1, 1874. ARTICLE II. COMMON CAKEIERS OF PERSONS. ; 2180. A common currier of persons, unless his vehicle is fitted for the reception of perm m exclusively, must receive i • i • i • £+4. if j.i and carry a reasonable amount of luggage for each passenger, ^^^ veUlClC IS Utted lor tlie without ciiarge, except for an excess' of weight over one hun- carrv a I'easonable amount /toiJwo,"' o/« 'l/ZT'^1 ' ^"""'"^f "'"* '^ T'' '^'T' *' f ^ept for an excess of weight pro/j) leio) of a Mage line, he may not receive and carry for each ^ ^ pasgeiiffer by mtch stage line, without charr/e, more than sixti/ founds of luggage. [In effect, May 8, 1878.'| jj- Sec. 2181. Luggage may consist of any articles intended for the use of a passenger Avhile traveling, or for his personal equipment. 7182. Liability for luggage. Sec 2182. The liability of a can'ier for luggage received by him with a pas- senger is the same as that of a common carrier of propert}'. 7183. Luggage, how carried and delivered. Sfx'. 2183. A common carrier must deliver every passenger's luggage, whether within the prescribed weight or not, immediately vipon the arrival of the jms- senger at his destination; and, unless the vehicle would be overcrowded or overloaded thereby, must carry it on the same vehicle by which he carries the passenger to whom it belonged, except that where luggage is transported by rail, it must be checked and carried in a regular baggage car; and whenever passengers neglect or refuse to have their luggage so checked and transjDorted, it is can-ied at theii* risk. [Amendment, approved March 30, 1874; Amendments 1873-4, 250; took effect July 1, 1874.(''> 7184. Obligation to provide vehicles. Sec 2184. A common carrier of persons must provide a sufficient number of vehicles to accommodate all the passengers who can be reasonably exj)ected to require carnage at any one time. (a) Tho original Bt-ctifm di'l not have the clause [h) The original section had the word " belongs " commencing with the words " and bIho to the liinita- luHtead of ■ Ijelouged," and did not have any of the tlon stated, " and ending with " live auimalH carried." subsequent clause, commencing with the words " ex- cept that where." 794 CARRIAGE. 7185-7197 7185. Seats for passengers. Sec. 2185. A common carrier of persons must provide every passen^'er with a seat. He must not overload Lis vehicle by receiving and carrying more pas- sengers than its rated capacity allows. 7188. Rerjulations for conduct of business. Sec. 2186. A common carrier of persons may make rules for the conduct of his business, and may require passengers to conform to them, if they are lawful, public, uniform in their application, and reasonable. 7187. Fare, ivhen payable. Sec 2187, A common carrier may demand the fare of passengers, either at starting or at any subsequent time. 7188. Ejection ofjMssengers. Sec. 2188. A passenger who refuses to pay his fare or to conform to any lawful regulation of the earner, may be ejected from the vehicle by the carrier. But this must be done with as little violence as possible, and at any usual stop- ping-place, or near some dwelling-house. 7189. Passenger ivho has not paid fare. Sec. 2189. A passenger upon a railroad train who has not paid his fare before entering the train, if he has been afforded an opportunity to do so, must, upon demand, pay ten per cent, in addition to the regular rate. 7190. Fare not payable after ejection. Sec 2190. After having ejected a passenger, a carrier has no right to require the payment of any part of his fare. 7191. Carrier's lien. Sec 2191. A common carrier has a lieu upon the luggage of a passenger for the payment of such fare as he is entitled to from him. This lien is regu- lated by the title on liens, ARTICLE III. COMMON CARRIERS OF PROPERTY. 7194. Liability of inland carriers for loss. Sec 2194. Unless the consignor accompanies the freight and retains exclu- sive control thereof, an inland common carrier of property is liable, from the time that he accepts until he relieves himself from liability pursuant to sections 2118 to 2122, for the loss or injury thereof from any cause whatever, except: 1. An inherent defect, vice, or weakness, or a spontaneous action, of the j)ropei'ty itself; 2. The act of a public enemy of the United States, or of this state; 3. The act of the law; or, 4. Any irresistible superhuman cause, 7195. Wheji exemjMons do not apply. Sec 2195. A common carrier is liable, even in the cases excepted by the last section, if his ordinary negligence exposes the property to the cause of the loss. 7196. Liability for delay. Sec 2196, A common carrier is liable for delay only when it is caused by his want of ordinary care and diligence. [Amendment, approved March 30, 1874; Amendments 1873-4, 251; took effect July 1, 1874,^^> 7197. Liability of marine carriers. Sec 2197, A marine carrier is liable in like manner as an inland carrier, except for loss or injury caused by the perils of the sea or fire. (a) The original section, instead of " caused by bis want of ordinary care and diligence," bad tbo words " tbe effect of bis ordinary negligence." 795 7198-7207 CrV'IL CODE. 7198. Same. Skc. 2198. The liability of a common carrier by sea is further regulated by acts of congress. 7199. Perils of sea, ichaf. Skc. 2199. Perils of the sea are from: 1. Storms and waves; 2. Rocks, shoals, and raj^ids; 3. Other obstacles, though of human origin; 4. Changes of climate; 5. The confinement necessary at sea; 6. Animals f)eculiar to the sea; and, 7. All other dangers i^eculiar to the sea. 7200. Limitation of liability without notice. Sec 2200. A common carrier of gpld, silver, platina, or precious stones, or of imitations thereof, in a manufactured or unmanufactured state; of time- l^ieces of any description; of negotiable paper or other valuable writiugs; of pictures, glass or chinaware; of statuary, silk, or laces; or of plated ware of any kind, is not liable for more than fifty dollars upon the loss or injuiy of any pne package of such articles, unless he has notice, upon his receipt thereof, by mark uj^on the package or otherwise, of the nature of the freight; nor is such carrier liable upon any package carried for more than the value of the articles named in the receipt or the bill of lading. [Amendment, approved March 30, 1874; Amendments 1873-4, 251; took effect July 1, 1874.^=^' 7201. Di'livery of freight beyond usual route. Sec. 2201. If a common carrier accepts freight for a place beyond his usual route, he must, unless he stipulates otherwise, deliver it at the end of his route in that direction to some other comj^etent carrier carrying to the place of ad- dress, or connected with those who thus carry, and his liability ceases upon making such delivery. 7202. Proof to be given in case of loss. Sec 2202. If freight addressed to a place beyond the usual route of the com- mon carrier who first received it is lost or injured, he must, within a reasonable time after demand, give satisfactory proof to the consignor that the loss or injuiy did not occur while it was in his charge, or he will be himself liable therefor. 7203. Carrier's services, other than carriage and delivery. Sec. 2203. In resi:)ect to any service rendered by a common carrier about freight, other than its carriage and delivery, his rights and obligations are de- fined b}' the titles on deposit and service. 7204. Sale of perishable property for freightage. Sec 2204. If, from any cause other than want of ordinary care and diligence on his part, a common carrier is unable to deliver jierishable property trans- ported \)y him, and collect his charges thereon, he may cause the property to bo sold in open market, to satisf}' his lien for freightage. [New section, ap)proved March 30, 1874; Amendments 1873-4, 251; took effect July 1, 1874. ARTICLE IV. COMMON CARRIERS OF MESSAGES. 7207. Order of transmission of lelegraphu^ messages. Sec 2207. A carrier of messages by telegraph must, if it is practicable, fa) The original Bt-ction did not have the words " of nor did it have the last clauBe commencing with the Statuary, bilk or lacfs; or of i^latc-d ware of any l£ind ;" words " nor is such carrier liable," 796 TRUST. 7207-7219 transmit every such message immediately upon its receipt. But if this is not practicable, and several messages accumulate upon his hands, he must transmit them in the following order: 1. Messages from jjublic agents of the United States or of this state, on public business; 2. Messages intended in good faith for immediate publication in newspapers, and not for any secret use; 3. Messages giving information relating to the sickness or death of any person ; 4. Other messages in the order in which they were received. 7208. Order in other cases. Sec. 2208. A common carrier of messages, otherwise than by telegraph, must transmit messages in the order in which he receives them, except messages from agents of the United States or of this state, on public business, to which he must always give priority. But he may fix uj^on certain times for the simul- taneous transmission of messages previousl}^ received. 7209. Damages when message is refused or postponed. Sec. 2209. Every person whose message is refused or postponed, contrary to the provisions of this chapter, is entitled to recover from the carrier his actual damages, and fifty dollars in addition thereto. TITLE YIII. ®ru0t. Chapter I. Trusts in General 7215 II. Trusts for the Benefit of Third Persons 7250 CHAPTEE I. TRUSTS IN GENERAL. Abticle I. Natuee and Ceeation of a TaasT 7215 II. Obligations of Tbustees 7228 III. Obligations of Thibd Persons 7213 ARTICLE I. NATURE AND CREATION OF A TRUST. 7215. Trusts classified. Sec. 2215. A trust is either: 1. Voluntary; or, 2. Involuntary. 7216. Voluntary trust, what. Sec. 2216. A voluntary trust is an obligation arising out of a personal con- fidence reposed in, and voluntarily accepted by, one for the benefit of another. 7217. Involuntary trust, what. Sec 2217. An involuntary trust is one Avhich is created by operation of law. 7218. Parties to the contract. Sec 2218. The person whose confidence creates a trust is called the trustor; the person in whom the confidence is reposed is called the trustee; and the person for whose benefit the trust is created is called the beneficiary. 7219. What constitutes one a trustee. Sec. 2219. Every one who voluntarily assumes a relation of personal confidence 797 7219-7230 Cn^IL CODE. ■^ith auotlier is cleemed a trustee, witliin the meaning of tliis chapter, not only as to the person -who reposes such confidence, hnt also as to all persons of •whose aifairs he thus acquires information whicli was given to such person in the like confidence, or over whose affairs he, by such confidence, obtains any control. 7220. For xL'hat purpose a trust may be created. Sec. 2220. A trust may be created for any purpose for which a contract may lawfully be made, except as otherwise prescribed by the titles on uses and trusts and on transfers. 7221. Voluntary trust, how created as to trustor. Sec. 2221. Subject to the provisions of section 852, a voluntary trust is created, as to the trustor and beneficiar}', by any words or acts of the trustor, indicating with reasonable certainty: 1. An intention on the part of the trustor to create a trust; and, 2. The subject, purpose, and beneficiary of the trust. 7222. Hoio created as to trustee. Sec. 2222. Subject to the provisions of section 852, a voluntary trust is created, as to the tnistee, by any words or acts of his indicating, with reason- able certainty: 1. His acceptance of the trust, or his acknowledgment, made upon sufficient consideration, of its existence; and, 2. The subject, purpose, and beneficiary of the trust. 7223. Involuntary trustee, icho is. Sec 2223. One who wrongfully detains a thing is an involuntary trustee thereof, for the benefit of the owner. 7224. Jnvolantary trust resulting from negligence, etc. Sec. 2224. One who gains a thing by fraud, accident, mistake, undue influ- ence, the violation of a trust, or other wrongful act, is, unless he has some other and better right thereto, an involuntary trustee of the thing gained, for the benefit of the person who would otherwise have had it. [As to involuntary deposit, see also ante, 681G.] AETICLE II. OBLIGATIONS OF TRUSTEES. 7228. Trustee's ohligation to good faith. Sec. 2228. In all matters connected with his trust, a trustee is bound to act in the highest good faith toward his beneficiary, and may not obtain any advan- tage therein over the latter by the slightest misrepresentation, concealment, tlu-e:it, or adverse pi-essui-e of any kind. 7229. Trustee not to use properly fur his oicnp7'ofU. Sec 2229. A trustee may not use or deal with the trust projierty for his own ])rofit, or for any other purpose unconnected with the trust in any manner. 7230. (Jcrlain transaclions forbidden. Sec. 2230. Neither a trustee nor any of his agents may take part in any transaction concerning the trust in which he or any one for whom he acts as agent has an interest, present or contingent, adverse to that of his beneficiary, except as follows: 1. "When the beneficiary, having capacit}' to contract, with a full knowledge of the motives of the trustee, and of all other facts concerning the transaction which might affect his own decision, and without the use of any influence on the part of tlie trustee, permits him to do so. 2. "When the Ijcneficiary not having capacity to contract, the proper court, ujion the like information of the facts, grants the like permission; or, 798 TEUST. 7230-7244 3. "When some of the beuefieiaries having capacity to contract, and some not having- it, the former grant permission for themselvea, and the proper court for the latter, in the manner above prescribed. 7231. Ti'ustee's influence not lo he used for Jus advantnr/e. Sec. 2231. A trustee ma}- not use the inlkience which his position gives him to obtain any advantage from his beneficiary. 7232. Trui IdTlQ. Power to make contracts. Sec 2376. The master of a ship may procure all its necessary repairs and supplies, may engage cargo and passengers for carriage, and, in a foreign port, (a) The original Bection after " interests " bad only tlie words " except to sell or hji'othecate the same." 808 AGENCY. 737G-7385 niaj^ enter into a charter-party; and Lis contracts for those purposes bind the owner to the full amount of the value of the ship and freightage. 7377. Power of shipmaster to Ixypothccate. Sec. 2377. The master of a ship may hypothecate the ship, freiglitage and cargo, and sell part of the cargo, in the cases prescribed bj' the chapters on bottomry and respondentia, and in no othei's, except that the master may also sell the cargo or any part of it short of the jiort of destination, if found to be of such perishable nature, or in such damaged condition that if left on board or reshipped, it would be entirely lost, or would seriously endanger the interests of its owners. [Amendment, approved March 30, 1874 ; Amendments 1873-4, 252; took effect July 1, 1874.<''> 7378. Master's poioer to sell ship. Sec. 2378. When a ship, whether foreign or domestic, is seriously injured, or the voyage is otherwise broken up, beyond the possibility of pursuing it, the master, in case of necessity, may sell the ship without instructions from the owners, unless by the earliest use of ordinary means of communication he can inform the owners, and await their instructions. 7379. Master' s power to sell cargo. Sec. 2379. The master of a ship may sell the cargo, if the voyage is broken up beyond the possibility of pursuing it, and no other ship can be obtained to carry it to its destination, and the sale is otherwise absolutely necessary. 7380. Authority to ransom ship. Sec. 2380. The master of a ship, in case of its capture, may engage to pay a ransom for it, in money or in part of the cargo, and his engagement will bind the ship, freightage, and cargo. 7381. Abandonment terminates master's poiver. Sec 2381. The power of the master of a ship to bind its owner, or the owners of the cargo, ceases upon the abandonment of the ship and freightage to insurers. 7382. Personal liability for contracts concerning the shijy. Sec 2382. Unless otherwise expressly agreed, or unless the contracting parties give exclusive credit to the owner, the master of a ship is personally liable ujDon his contracts relative thereto, even when the owner is also liable. 7383. Liability for acts of iiersons employed upon the ship. Sec 2383. The master of a ship is liable to third persons for the acts or neg- ligence of persons employed in its navigation, whether aj)pointed by him or not, to the same extent as the owner of the ship. 7384. Responsibility for negligence of pilot. Sec 2384. The owner or master of a ship is not responsible for the negligence of a pilot whom he is bound by law to employ; but if he is allowed an option betweeji^ pilots, some of whom are competent, or is required only to pay com- pensation to a pilot, whether he employs him or not, he is so responsible to third persons. 7385. Obligations of shipowner to owner of cargo. Sec 2385. The owner of a ship is bound to pay to the owner of her cargo the market value at the time of arrival of the ship at the port of her destination, of that portion of her cargo which has been sold to enable the master to pay the necessary repairs and supplies of the ship. [New section, approved March 30, 1874; Amendments 1873-4, 252; took effect July 1, 1874. (a) Original section: tlie chapters on bottomry and respondentia, and in no Sec. 2377. The master of a ship may hypothecate the others, ship, freightage, and cargo in the cases prescribed by 809 7388-7402 CIVIL CODE. ARTICLE IV. ships' managers. 7388. What poioers manager has. Sec. 2388. A ship's manager has iDOwer to make contracts requisite for the performance of his duties as such; to enter into charter-parties, or make con- tracts for carriage; and to settle for freightage and adjust averages. 7389. What poioers he has not. Sec. 2389. "Without special authority a shijj's manager cannot borrow mone}-- or give up the lien for freightage, or purchase a cargo, or Lind the owners of the ship to an insui'ance. TITLE X. Chapter I. Partnership in General 7395 II. General Partnership 7424 III. Speclil Partnership 7477 IV. Mining Partnership 7511 CHAPTER I. PARTNERSHIP IN GENERAL. Article I. What Constitutes a Partnership 7395 II. Partnership Property 7401 III. Mutual Obligations or Partners 7410 lY. IIencnciation of Partnership 7417 ARTICLE I. WHAT constitutes A PARTNERSHIP. 7395. Partnership, what. Sec. 2395. Partnership is the association of two or more persons, for the purpose of caiiying on business together, and dividing its profits between them. 7396. Shipoioners. Sec 239G. Part owners of a ship do not, by simply using it in a joint enter- prise, become partners as to the ship. 7397. Formation of partnership. Sec 2397. A pai'tnership can be formed only by the consent of all the parties thereto, and therefore no new partner can be admitted into a partnership with- out the consent of ever}' existing member thereof. ARTICLE II. PARTNERSHIP PROPERTY. 7401. Partnership properly, xulial. Sec 2401. The pro^jerty of a partnership consists of all that is contributed to the common stock at the formation of the partnershij), and all that is subse- quently acquired thereby. 7402. Partner's interest in pjartnership prf>2)ert)j. Sec. 2402. The interest of each member of a partnership extends to every portion of its property. 810 PAKTNERSHIP. 7403-7417 7403. Partner's share in 2>rofits and losses. Sec. 2403. In the absence of any agreement on the subject the shares of partners in the profit or loss of the business are equal, and the share of each in the partnership property is the value of his original contribution, increased or diminished by his share of profit or loss. 7404. Wlien division of losses implied. Sec. 2404. An agreement to divide the profits of a business implies an agree- ment for a corresponding division of its losses, unless it is otherwise expressly stijDulated. 7405. Partner may require application of partnership property to payment of debts. Sec. 2405. Each member of a partnership may require its property to l>e ap- plied to the discharge of its debts, and has a lien upon the shares of the other l^artners for this purpose, and for the payment of the general balance if any due to him. 7406. What jyropeiiy is partnership property by presumption. Sec. 2406. Property, whether real or personal, acquired with partnership funds, is presumed to be partnership property. ARTICLE III. MUTUAL OBLIGATION OF PARTNERS. 7410. Partners trustees for each other. Sec. 2410. The relations of partners are confidential. They are trustees for each other within the meaning of Chapter I of the title on trusts, and their ob- ligations as such trustees are defined by that chapter. 7411. Good faith to be observed between them. Sec. 2411. In all proceedings connected wdth the formation, conduct, disso- lution, and liquidation of a joartnership, every partner is bound to act in the highest good faith toward his cojDartners. He may not obtain any advantage over them in the partnership affairs by the slightest misrepresentation, con- cealment, threat, or adverse pressure of any kind. 7412. Mutual liability of partners to account. Sec. 2412. Each member of a partnership must account to it for even'thing that he receives on account thereof, and is entitled to reimbursement therefrom for everything that he proj^erly expends for the benefit thereof, and to be in- demnified thereby for all losses and risks which he necessarily incurs on its behalf. 7413. No compensation for services to firm. Sec. 2413. A partner is not entitled to any compensation for services rendered by him to the partnership. ARTICLE IV. RENUNCIATION OF PARTNERSHIP. 7417. Renunciation of future profits exonerates from liahiWy. Sec 2417. A partner may exonerate himself from all future liability to a third person, on account of the partnership, by renouncing, in good faith, all partici- pation in its future profits, and giving notice to such third person, and to his own copartners, that he has made such renunciation, and that, so far as may be in his power, he dissolves the partnership and does not intend to be liable on account thereof for the future. 811 7418-7431 Cn^IL CODE. 7418. Effect of renunciation. Sh:c. 2418. After a partner bas given notice of bis renunciation of the jiartner- sliip, lie cannot claim any of its subsequent profits, and his copartners may pro- ceed to dissolve the partnership. CHAPTER II. GENERAL PARTNERSHIP. Article I. "What is a Gknkral Partnership 7424 II. Powers and Authority of Partners 7428 III. Mutual Obligations of Partners 7435 IV. Liability of Partners 7442 V. Termination of Partnership 7449 TI. Liquidation 7458 "\^I . Of the Use of Fictitious Names 74G6 ARTICLE I. WHAT IS A GENEK.\L PARTNEKSHIP. 7424. General partnership, what. Sec. 2424. Every i)ai"tnership that is not fonned in accordance with the law concerning special or mining partnerships, and every sj)ecial partnership, so far only as the general jjartners are concerned, is a general partnership. ARTICLE II. POWERS AND AUTHORITY OF PARTNERS. 7428. Poicer of majority ofjxirtners. Sec. 2428. Unless othenvise expressly stipulated, the decision of the majority of the members of a general XDartnershij) binds it in the conduct of its business. 7429. Authority of individual partner. Sec 2429. Every general partner is agent for the partnership) in the transac- tion of its business, and has authority to do whatever is necessary to carry on such business in the ordinary manner, and for this purpose may bind his co- partners by an agreement in writing. 7430. What authority pjartner has not. Sec. 2430. A partner, as such, has not authority to do any of the following acts, unless his copartners have wholly abandoned the business to him, or are incapable of acting: 1. To make an assignment of the partnershiii property or any portion thereof to a creditor, or to a third person in trust for the benefit of a creditor or of all creditors; 2. To dispose of the good will of the business; 3. To dispose of the whole of the partnership property at once, unless it consists entirely of merchandise; 4. To do any act which would make it impossible to carry on the ordinary business of the partnership; 5. To confess a judgment; 6. To submit a partnershii) claim to arbitration; 7. To do any other act not within the scope of the i:)receding section. 7431. Partner's acAs in bad faith, tcJien inpffectaal. Sec. 2431. A partner is not bound by any act of a copartner, in bad faith toward him, though witliin the scope of the partner's powers, excej^t in favor of persons who have in good faith parted with value in reliance upon such act. 812 PARTNERSHIP, 7435-7450 ARTICLE III. MUTUAL OBLIOATIONS OF PARTNEHS, 7435 . Profits of individual partner. Sec, 2435. All profits made by a general partner, in the eoui-se of any busi- ness usually carried on by the partnership, belong to the firm. 7436. In ivhat b2isiness partner viay not engage. Sec. 2436. A general j^artner, who agrees to give his personal attention to the business of the i^artnership, may not engage in any business -which gives him an interest adverse to that of the partnership, or which prevents him from giving to such business all the attention Avhich would be advantageous to it. 7437. In what he may engage. Sec. 2437, A partner may engage in any separate business, except as othor- wdse provided by the last two sections. 7438. llust account to firm for profds. Sec. 2438. A general partner transacting business contrary to the provisions of this article may be required by any copartner to account to the partiiership for the profits of such business, ARTICLE IV, LIABILITY OF PAKTNEES, 7442, Liability of partners to third persons. Sec, 2442. Every general partner is liable to third persons for all the obliga- tions of the paitnership, jointly with his copartners. 7443, Liability for each other's acts as agents. Sec 2443. The liability of general partners for each other's acts is defined by the title on agency. 7444, Liability of one held out as partner. Sec 2444, Any one permitting himself to be represented as a partner, general or special, is liable, as such, to third persons to whom such representa- tion is communicated, and who, on the faith thereof, give credit to the partner- ship, 7445, No one liable as partner unless held out as such. Sec 2445. No one is liable as a partner who is not such in fact, except as provided in the last section. ARTICLE V, TERMINATION OF PARTNERSHIP. 7449. Duration of partnership. Sec 2449. If no term is prescribed by agreement for its duration, a general loartnership continues until dissolved by a partner or by operation of law. 7450. Total dissolution ofpaiinership. Sec 2450. A general partnership is dissolved as to all the partners: 1. By lapse of the time prescribed by agreement for its duration; 2. By the expressed will of any partner, if there is no such agreement; 3. By the death of a partner; 4. By the transfer to a person, not a partner, of the interest of any partner in the partnership j)roperty; 5. By war, or the prohibition of commercial intercourse between the country in which one partner resides and that in which another resides; or, 6. By a judgment of dissolution, 813 7451-7462 CIVIL CODE. 7451. Partial dissolution. Sec. 2451. A general partnersliip may be dissolved, as to himself only, by the expressed will of any partner, notwithstanding his agreement for its contin- uance, subject however to liability to his copartners for any damage caused to them thereby, unless the circumstances are such as entitle him to a judgment of dissolution. 7452. Partner entitled to dissolution. Sfx. 2452. A general partner is entitled to a judgment of dissolution; 1. "When he, or another partner, becomes legally incapable of contracting; 2. "When another partner fails to perfomi his duties under the agreement of partnership, or is guilty of serious misconduct; or, 3. "When the business of the partnership can be carried on only at a perma- nent loss. 7453. Xotice of termination. Sec. 2453. The liability of a general partner for the acts of his copartners continues, even after a dissolution of the copartnership, in favor of jDersous who have had dealings with and given credit to the partnership during its existence, until they have had personal notice of the dissolution; and in favor of other pei"sons until such dissolution has been advertised in a newspaper published in every county where the jDartnership, at the time of its dissolution, had a jjlace of business, if a newsjDaper is there published, to the extent in either case to which such persons part with value in good faith, and in the belief that such l)artner is still a member of the firm. 7454. Xotice by change of name. Sec 2454. A change of the partnership name, M'hich plainly indicates the withdrawal of a partner, is sufficient notice of the fact of such withdrawal to all persons to whom it is communicated; but a change in the name, which does not contain such an indication, is not notice of the withdrawal of any partner. AKTICLE VI. LIQUIDATION. 7458. Powers of partners after dissolution. Sec 2458. After the dissolution of a partnership), the powers and authority of the partners are such only as are prescribed by this article. 7459. WJio may act in liquidation. Sec 2459. Any member of a general partnership may act in liquidation of its affairs, except as jirovided by the next section. 7460. Wlio may not act in liquidation. Sec 24G0. If the liquidation of a partnership is committed, by consent of all the partners, to one or more of them, the others have no right to act therein; but their acts are valid in favor of persons parting with value, in good faith, ui^on credit thereof. 7461. Poimrs of partners in liquidation. Sec 2401. A partner authorized to act in liquidation may collect, compromise, or release any debts due to the partnership, pay or compromise any claims against it, and dispose of the partnership property. 7462. IVhat partner may do in liquidation. Sec 2402. A partner authorized to act in liquidation, may indorse, in the name of the firm, promissory notes, or other obligations held by the partnership, for the i)urpose of collecting tljc same, but he cannot create any new obligation in its name, or revive a debt against the firm, by an acknowledgment when an 814 PARTNERSHIP. 74G2-74G9 action thereon is barred under the provisions of the Code of Civil Procedure. [Amendmcni, approved March 30, 1874; ^l»i('/((///(('»(/.s 1873-4, 252; louk <-(/)vlJiili/l 1874.'" ARTICLE VII. OF THE USE OF FICTITIOUS NAMES. 7466. Partnership, under fictitious, name. Sec. 24GG. Excejjt as otherwise provided in the next section, every partner- ship transacting- business in this state under a fictitious name, or a designation not showing the names of the persons interested as pjirtuers in such business, must file with the clerk of the county in which its principal place of business is situated, a certificate stating the names in full of all the members of such part- nership and their ^^laces of residence, and publish the same once a week for four successive weeks, in a newspaper published in the county, if there be one, and if there be none in such county, then in a newspaper published in an adjoining county. [Amendment, approved March 30, 1874; Amendments 1873-4, 253; took effect Juhj 1, 1874.^''> 7467. Foreign partnerships. Sec. 24G7. A commercial or banking partnership, established and transact- ing business in a place without the United States, may, without filing the cer- tificate, or making the publication prescribed in the last section, use in this state the partnership name used by it there, although it be fictitious, or does not show the names of the persons interested as partners in such business. [Amendment, approved March 80, 1874; Amendments 1873-4, 253; took eff'ect July 1, 1874.*'^ 7468. Certificate of partnership to he filed. Sec. 24G8. The certificate filed with the clerk, as provided in section twenty- four hundred and sixty-six, -must be signed by the partners, and acknowledged befoi'e some officer authorized to take the acknowledgment of conveyances of real property. Where the partnership is hereafter formed, the certificate must be filed, and the publication designated in that section must be made within one mouth after the formation of the jDartnership, or Avithin one month from the time designated in the agreement of its members for the commencement of the partnership; where the partnership has been heretofore formed, the certificate must be filed, and the publication made within six months after the passage of this act. Persons doing business as partners contrary to the pi'OA-isious of this article, shall not maintain any action upon or on account of an}' contracts made or transactions had in their partnershii^ name, in any court of this state, until they have first filed the certificate and made the jjublication herein required. [Amendment, approved March 30, 1874; Amendments 1873-4, 253; took effect July 1, 1874.^"^^ 7469. Neiu certificate required on change of partners. Sec. 24G9. On eveiy change in the members of a partnership transacting busi- ness in this state under a fictitious name, or a designation which does not show the names of the persons interested as partners in its business, except in the (a) Original section: (c) Original section: . v.,, ^ ^ Sec. 246-2. A partner authorized to act in liquidation Sec. 24ti7. A commercial partnership, established may enter, in the name of the firm, into any obliga- and transacting busimss in a place without the Imted tion, by way of satisfaction of a partnership debt, or as States, may use in this state the partnership name a- collateral security therefor; but he cannot make, used by it there, although tictitiouB. draw, or indorse any other obligation in its name, nor (rf) Original section: revive a debt against the firm, by any acknowledg- Sec. 24t)S. The name of a partnership, which ba« ment, -within the provisions of the Code of Civil had business relations with places without the I nlted Procedure concerning the times of commencing civil States, may be continued in use by the persons suc- actions. ceeding to its business, and by their successors, upon (6) Original section- compliance with the provisions of this article, and Sec.24w>. No partnership or person may transact with the consent of the persons, if living, whose names business by a fictitious name, or in the name of a jjer- are used, son not interested in such business , except as prescribed in this article. 815 74G9-7480 CIVIL CODE. cases meutionecl in section twenty-four liunclrecl and sixty-seven, a new certifi- cate must be filed witli the county clerk, and a new publication made, as required by this article on the formation of such partnership. [Amendment, approved March 30, 1874; Amendments 1873-4, 254; took effect July 1, 1874/''> 7470. Register of firms to he kept by county clerk. Sec. 2470. Everj' county clerk must keep a register of the names of firms and persons mentioned in the certificates filed with him, jiursuant to this article, entering in alphabetical order the name of every such partnership, and of each partner therein. [Amendment, approved March 30, 1874; Amendments 1873-4, 254; took effect July 1, 1874,^''> 7471. Certified copies of register and proof of publication to be evidence. Sec. 2471. Copies of the entries of a county clerk, as herein directed, when certified by him, and affidavits of publication, as herein directed, made by the printer, publisher, or chief clerk of a newspaper, are presumptive evidence of the facts therein stated. CHAPTEK III. SPECIAL PARTNERSHIP. Abticle I. Formation of Paetnekship 7477 II. PowEEs, Rights, and Duties of the Paetnees. . 7489 III. Liability of Partnkes 7500 IV. Alteeation and Dissolution of the Pabtnership 7507 AKTICLE I. FORMATION OF PARTNERSHIP. 7477. Formation of special partnership. Sec. 2477. A special partnership may be formed by two or more persons, in the manner and with the efl^ect prescribed in this chapter, for the transaction of any business except banking or insurance. 7478. Of ivhat to consist. Sec. 2478. A special partnership may consist of one or more persons called general jiartuers, and one or more persons called special partners. 7479. Certified statement. Sect. 2479. Persons desirous of forming a sj)ecial partnership must severally sign a certificate, stating: 1. The name under which the partnership is to be conducted; 2. The general nature of the -business intended to be transacted; 3. The names of all the partners, and their residences, specifying which are general and which are special partners; 4. The amount of cai)ital which each special partner has contributed to the common stock; 5. The periods at which such partnership will begin and end. 7480. Acknowh'dyed and recorded. Sec 2480. Certificates under the last section must be acknowledged by all the l^aiiners, before some ofiicer authorized to take acknowledgment of deeds, one to be filed in the clerk's ofi^ice, and the other recorded in the office of the recorder (a) Original gfction: and nmst publish such rcrtificate, or a statement con- Sec. 240'.t. Ou evtry change of the porsons continu- taining the substance thcicuf, once in each week for ing the use of a partnership name, under the last sec- four successive weeks, beginning within one week tioii, the person acriuiring the right to iisc it must sign after his first using sui^h name, in a newspaper printed and acknowledf;e, before » proper ofiicer for that pur- in the county, or nearest the county (if noni' is printed pose, a cerliticate stating tlie name of each pers(jn deal- in the county) in which such principal place of bust- ing under such nanii-, and liis place of residence, and ness is situated. must tile the same with the clerk of the county in {h) The original section, instead of " this article," which their principal jdace of buBiness is situated; had the words " the last section." 816 PARTNERSHIP. 7480-7492 of the county in which the principal place of business of the partnership is situated, in a book to be kept for that purjiose, open to public inspection; and if the partnership has places of business situated in different counties, a coi)y of the certificate, certified by the recorder in whose office it is recorded, must be filed in the clerk's office, and recorded in like manner in the office of the recorder in every such county. If any false statement is made in any such certificate, all the persons interested in the partnershiiJ are liable, as general partners, for all the engagements thereof. 7481. Affidavit as to sums contributed. Sec. 2481. An affidavit of each of the partners, stating that the sums speci- fied in the certificate of the partnershij) as having been contributed by ouch of the special partners, have been actually and in good faith paid, in the lawful money of the United States, must be filed in the same office with the original certificate. 7482. No partnersliip until compliance. Sec 2482. No special partnership is formed until the provisions of the last five sections are complied with. 7483. Certificate to he published. Sec. 2483. The certificate mentioned in this article, or a statement of its sub- stance, must be published in a newspaper printed in the county where the original certificate is filed, and if no newspaper is there printed, then in a news- paper in the state nearest thereto. Such publication must be made once a week for four successive weeks, beginning within one week from the time of filing the certificate. In case such publication is not so made, the partnership must be deemed general. 7484. Affidavit of publication filed. Sec. 2484. An affidavit of the making of the publication mentioned in the preceding section, made by the printer, publisher, or chief clerk of the news- paper in which such publication is made, may be filed with the county recorder with whom the original certificate was filed, and is presumptive evidence of the facts therein stated. 7485. Renewal of special partnership. Sec. 2485. Every renewal or continuance of a special partnershij^ must be certified, recorded, verified, and published in the same manner as upon its original formation. ARTICLE II. POWERS, RIGHTS, AND DUTIES OF THE PARTNERS. 7489. Who to do business. Sec 2489. The general partners only have authority to transact the business of a special partnership, 7490. Special partners may advise. Sec 24C0. A special partner may at all times investigate the partnership affairs, and advise his partners, or their agents, as to their management. 7491. Hay loan money. Sec. 2491. A special partner may lend money to the partnership, or advance money for it, and take from it security therefor, and as to such loans or advances has the same rights as any other creditor; but in case of the insolvency of the partnership, all other claims which he may have against it must be postponed until all other creditors are satisfied. 7492. General partners may sue and be sued. Sec, 2492, In all matters relating to a special partnership, its general partners 52 817 7492-7503 CIVIL CODE. may sue and be sued alone, in the same manner as if there were no special partners. 7493. Withdrawal of capital. Sec. 2493. No sjiecial partner, under any pretense, may withdraw any part of the cai^ital invested by him in the partnership, during its continuance. 7494. Liierest and profits. Sec. 2494. A sjiecial partner may receive such lawful interest and such pro- portion of profits as may be agreed upon, if not paid out of the caj^ital invested in the partnership by him, or by some other special partner, and is not bound to refund the same to meet subsequent losses. 7495. Bct^nlt of icillidraicing capital. Sec. 2495. If a special partner withdraws capital from the firm, contrary to the provisions of this article, he thereby becomes a general partner. 7496. Preferential transfer void. Sec 249G. Every transfer of the property of a special partnership, or of a partner therein, made after or in contemplation of the insolvency of such part- nership or partner, with intent to give a preference to any creditor of such part- nership or partner over any other creditor of such partnership, is void against the creditors thereof; and every judgment confessed, lien created, or security given, in like manner and with the like intent, is in like manner void. ARTICLE III. LIABILITY OF PARTNERS. 7500. Liability of partners. Sec. 2500. The general partners in a special partnership are liable to the same extent as partners in a general partnership. 7501. Of special partners. Sec 2501. The contribution of a special partner to the capital of the firm, and the increase thereof, is liable for its debts, but he is not otherwise liable therefor except as follows: 1. If ne has Avillfully made or permitted a false or materially defective state- ment in the certificate of the partnership, the affidavit filed therewith, or the pul)lished announcement thereof, he is liable, as a general partner, to all cred- itors of the firm; 2. If he has willfully interfered with the business of the firm, excei3t as per- mitted in Article II of this chapter, he is liable in like manner; or, 3. If ho has willfully joined in or assented to an act contrary to any of the provisions of Article II of this chapter, he is liable in like manner. 7502. Liability for unintentional act. Sec 2502. "When a special partner has unintentionally done any of the acts mentioned in the last section, he is liable, as a general partner; to any creditor of the firm who has been actually misled thereby to his prejudice. 7503. Who may qaeslion existence of special partnership . Sec. 2503. One who, upon making a contract with a partnershii?, accepts from or gives to it a written memorandum of the contract, stating that the partnership is special, and giving the names of the special partners, cannot afterwards charge tlie persons thus named as general partners ujDon that con- tract, by reason of an error or defect in tlie proceedings for the creation of the special partnership, prior to the acceptance of the memorandum, if an effort has been made by the partners, in good faith, to form a special partnership in the manner required by Article I of this chapter. 818 PAKTNERSHIP. 7507-7514 AETICLE IV. ALTERATION AND DISSOLUTION. 7507. When special partnership becomes general. Sec. 2507. A special partnership becomes general if, within ten daj's after any partner withdraws from it, or any new partner is received into it, or a change is made in the nature of its business or in its name, a certificate of such fact, duly verified and signed by one or more of the i^artners, is not filed with the county clerk and recorder with whom the original certificate of the partner- ship was filed, and notice thereof publislied as is provided in Article I of this chapter for the publication of the certificate. 7508. JBbiv neio special partners may he admitted. Sec. 2508. New special partners may be admitted into a special partnership upon a certificate, stating the names, residences, and contributions to the common stock of each of such jDartners, signed by each of them, and by the general partners, verified, acknowledged, or proved, according to the provisions of Article I of this chapter, and filed with the county clerk and recorder with whom the original certificate of the partnership was filed. 7509. Dissolution of sptecial partnership. Sec. 2509. A special partnership is subject to dissolution in the same manner as a general partnership, except that no dissolution, by the act of the partners, is complete until a notice thereof has been filed and recorded in the office of the county clerk and recorder with whom the original certificate was recorded, and published once in each week, for four successive weeks, in a newspaper printed in each county where the partnership has a place of business. 7510. The name of a special partner not used, xtnless. Sec. 2510. The name of a special partner must not be used in the finn name of partnership, unless it be accompanied Avith the word " limited." CHAPTER IV. MINING PARTNERSHIPS. 7511. When a mining partnership exists^. Sec. 2511. A mining partnership exists when two or more persons who own or acquire a mining claim for the purpose of working it and extracting the min- eral therefrom actually engage in working the same. 7512. Express agreement not necessary to constitute. Sec. 2512. An express agreement to become partners or to share the profits and losses of mining is not necessary to the formation or existence of a mining partnership. The relation arises from the ownership of shares or interest in the mine and working the same for the purpose of extracting the minerals there- from. 7513. Profits and losses, Jiow shared. Sec. 2513. A member of a mining partnership shares in the profits and losses thereof in the proportion which the interest or share he owns in the mine bears to the whole partnership capital or whole number of shares. 7514. Lien of partners. Sec. 2514. Each member of a mining partnership has a lien on the partner- ship property for the debts due the creditors thereof, and for money advanced by him for its use. This lien exists notwithstanding there is an agreement among the partners that it must not. 819 7515-7520 CIVIL CODE. 7515. Jline, partnership property. Skc. 2515. The miniug ground owned and worked by partners in mining, whether jiurchased with partnership funds or not, is jjartnership property. 7516. rartner?hip not dissolved by sale of interest. Skc. 2516. One of the partners in a mining- partnership may convey his in- terest in the mine and business without dissolving the j^artnership. The pur- chaser, from the date of his purchase, becomes a member of the partnership. 7517. Purchaser takes, subject to liens, unless, etc. Skc 2517. A purchaser of an interest in the mining ground of a mining partnership takes it subject to the liens existing in favor of the partners for debts due all creditors thereof, or advances made for the benefit of the partner- shij), unless he jDurchased in good faith, for a valuable consideration, without notice of such lien. 7518 Takes with notice of lien, when. Skc. 2518. A purchaser of the interest of a partner in a mine when the j)art- nership is engaged in working it, takes with notice of all liens resulting from the relation of the partners to each other and to the creditors of the jDart- nership. 7519. Contract in writing, when binding. Skc. 2519. No member of a mining partnership or other agent or manager thereof can, by a contract in writing, bind the partnership, except by express authority derived from the members thereof. 7520 Oivners of majority of shares govern. Skc 2520. The decision of the members owning a majority of the shares or interests in a mining partnership binds it in the conduct of its business. TITLE XI. $\m\vmtt. Chapter I. Insurance in General " 7527 II. Marine Insurance 7655 III. Fire Insurance 7752 rV. Lite and Health Insurance 7762 CHAPTER I. INSURANCE IN GENERAL. ARTICLE I. Dkfinition OF Insubanck 7527 II. What mai be Insobed 7531 III. pAKiiKS 7538 IV. Insubaule Intekkpt 7546 V. CoNCKAI.MKNT AST) RkIBKKENTATION 75G1 VI. The Policy 7586 VII. Wakhantieb 7G03 VIII. Pbkmiumh 7616 IX. Lo8H 7026 X. Notice of Lokh 7033 XI. Double Inhubance 7641 XII . Reinsubanck 7646 820 INSUEANCE. 7527-7542 ARTICLE I. DEFINITION OF INSURANCE. 7527. Insurance, what. Sec. 2527. Insurance is a contra(-t whereby one undertakes to iiideninify another against loss, damage, or Hability, arising fi'om an unknown or contin- gent event. ARTICLE II. WHAT MAY BE INSURED. 7531. What events may he insured against. Sec. 2531. Any contingent or unknown event, whether past or future, which may damnify a person having an insurable interest, or create a liability against him, may be insured against, subject to the jDrovisions of this chapter. 7532. Insurance of lottery or lottery prize unauthorized. Sec 2532. The preceding section does not authorize an insurance for or against the drawing of any lottery, or for or against any chance or ticket in a lottery drawing a prize. 7533. Usual kinds of insurance. Sec. 2533. The most usual kinds of insurance are : 1. Marine insurance, 2. Fire insurance; 3. Life insurance; 4. Health insurance; and 5. Accident insurance. 7534. All subject to this chapter. Sec 2534. All kinds of insurance are subject to the provisions of this chapter ARTICLE III. parties to the contract. 7538. Designation of parties. Sec 2538. The person who undertakes to indemnify another by a contract of insurance is called the insurer, and the person indemnified is called the insured. 7539. Who may insure. Sec 2539. Any one capable of making a contract may be an insurer, subject to the restrictions imposed by special statutes upon foreign corporations, non- residents, and others. 7540. Who may be insured. Sec 2540. Any one except a public enemy may be insured. 7541. Assignment to mortgagee of thing insured. Sec 2541. Where a mortgagor of property effects insurance in his own name, providing that the loss shall be payable to the mortgagee, or assigns a policy of insurance to the mortgagee, the insurance is deemed to be upon the interest of the mortgagor, who does not cease to be a party to the original contract, and any act of his which would othei-wise avoid the insurance will have the same effect, although the property is in the hands of the mortgagee. 7542. Neiv contract between insurer and assignee. Sec 2542. If an insurer assents to the transfer of an insurance from a mort- gagor to a mortgagee, and, at the time of his assent, imposes further obliga- tions on the assignee, making a new contract with him, the acts of the mortgagor cannot affect his rights. 821 754G-7o57 CIVIL CODF. ARTICLE IV. IN'SUKABLE INTEKEST. 7546. Insurable interest, ichat. Sec. 2546. Every interest in property, or any relation thereto, or liability in respect thereof, of such a nature that a contemplated jDeril might directly dam- nify the insured, is an insurable interest. 7547. In what may consist. Sec. 2547. An insurable interest in property may consist in: 1. An existing- interest; 2. An inchoate interest founded on an existing interest; or, 3. An expectancy, coui)led with an existing interest in that out of which the expectancy arises. 7548. Interest of carrier or depositary. Sec. 2548. A carrier or depositary of any kind has an insurable interest in a thing held by him as such, to the extent of its value. 7549. 3Ie7'e expectancies. Sec 2549. A mere contingent or expectant interest in anything, not founded on an actual right to the thing, nor ujDon any valid contract for it, is not in- surable. 7550. Measure of interest in property. Sec. 2550. The measure of an insurable interest in property is the extent to which the insured might be damnified by loss or injury thereof. 7551. Insurance icithout interest, illegal. Sec 2551. The sole object of insurance is the indemnity of the insured, and if he has no insurable interest the contract is void. 7552. When interest must exist. Sec. 2552. An interest insured must exist when the insurance takes e£fect, and when the loss occurs, but need not exist in the meantime. 7553. Effect of transfer. Sec 2553. Except in the cases specified in the next four sections, and in the cases of life, accident, and health insurance, a change of interest in any part of a thing insured, unaccompanied by a corresponding change of interest in the insurance, susi:)ends the insurance to an equivalent extent, until the interest in the thing and the interest in the insurance are vested in the same person. 7554. Transfer after loss. Sec. 2554. A change of interest in a thing insured, after the occurrence of an injury wliich results in o loss, does not affect the right of the insured to indem- nity for the loss. 7555. Exnption in the case of several subjects in one policy. Sec 2555. A change of interest in one or more of several distinct things, separately insured by one jiolicy, does not avoid the insurance as to the others. 7556. In case of the deatli of the insurer. Sec 2550. A change of interest, by will or succession, on the death of the insured, does not avoid an insurance; and his interest in the insurance j^assesto the person taking his interest in the thing insured. 7557. In the case of transfer heticeen co-tenants. Sec 2557. A transfer of interest by one of several partners, joint owners, or owners in common, who are jointly insured, to the others, does not avoid an insurance, even tliougli it has been agreed that the insurance shall cease ujwn an alienation of the thing insured. 822 INSITRANCE. 7558-75G8 7558. Policy of insurance, when void. Sec. 2558. Every stipulation in a policy of insurance for tlie payment of loss, whether the person insured has or has not any interest in the projierty insured, or that the policy shall be received as proof of such interest, and eveiy policy executed by way of gaming or wagering, is void. [Nexo section , approved 2Iarch 30, 1874; Amendments 1873-4, 255; took efect July 1, 1874. ARTICLE V. CONCEALMENT AND REPBESENTATI0N8, 7561. Concealment, tvhat. Sec. 25G1. A neglect to communicate that which a party knows, and ought to communicate, is called a concealment. 7562. Effect of concealment. Sec. 2562. A concealment, whether intentional or unintentional, entitles the injured party to rescind a contract of insui'auce. 7563. What must he disclosed. Sec. 2563. Each party to a contract of insurance must communicate to the other, in good faith, all facts within his knowledge which are or which he be- lieves to be material to the contract, and which the other has not the means of ascertaining, and as to which he makes no warranty. 7564. Matters which need not be communicated loithout inquiry. Sec. 2564. Neither party to a contract of insurance is bound to communicate information of the matters following, except in answer to the inquiries of the other: 1. Those which the other knows; 2. Those which, in the exercise of ordinary care, the other ought to know, and of which the former has no reason to supypose him ignorant; 3. Those of which the other waives communication; 4. Those which prove or tend to prove the existence of a risk excluded by a warranty, and which are not otherwise material; and, 5. Those which relate to a risk excepted from the policy, and which are not otherwise material. 7565. Test of materiality. Sec 2565. Materiality is to be determined not by the event, but solely by the probable and reasonable influence of the facts upon the party to whom the com- munication is due, in forming his estimate of the disadvantages of the proposed contract, or in making his inquiries. 7566. Matters ivhich each is bound to know. Sec 2566. Each party to a contract of insurance is bound to know all the general causes which are open to his inquiry, equally with that of the other, and which may affect either the political or mateiial perils contemp)lated; and all general usages of trade. 7567. Waiver of communication. Sec 2567. The right to information of material facts may be waived, either by the terms of insurance or by neglect to make inquiries as to such facts, where they are distinctly implied in other facts of which information is com- municated. 7568. Interest of insured. Sec 2568. Information of the nature or amount of the interest of one insured need not be communicated unless in ausAver to an inquiry, except as prescribed by section 2587. 823 7569-7583 CIVIL CODE. 7569. Fraudulent xi-arranty. Sec. 25G9. An iuteutional and fraudulent omission, on the part of one in- sured, to communicate information of matters proving or tending to prove the falsity of a warranty, entitles the insurer to rescind. 7570. JiMters of opinion. Sec 2570. Neither i:)art3^ to a contract of insurance is bound to communicate, even upon inquiry, information of his own judgment upon the matters in ques- tion. 7571. Representation, what. Sec. 2571. A representation may be oral or written. 7572. When made. Sec 2572. A representation may be made at the same time with issuing the policy, or before it. 7573. Hoiv interpreted. Sec 2573. The language of a representation is to be interpreted by the same rules as the language of contracts in general. 7574. Representation as to future. Sec 2574. A representation as to the future is to be deemed a promise, unless it appears that it was merely a statement of belief or expectation. 7575. Hot'- may a feet policy. Sec 2575. A representation cannot be allowed to qualify an express pro- vision in a contract of insurance; but it may qualif}^ an implied warranty. 7576. Wheti may be withdrawn. Sec. 257G. A representation may be altered or withdrawn before the insur- ance is effected, but not afterwards. 7577. Time intended by representation. Sec 2577. The completion of the contract of insurance is the time to which a representation must be presumed to refer. 7578. Representing information. Sec 2578. "When a person insured has no personal knowledge of the fact, he may nevertheless rej^eat information which he has upon the subject, and Avhich he believes to be true, with the explanation that he does so on the infoiTnation of others, or he may submit the information, in its whole extent, to the insurer; and in neither case is he responsible for its truth, unless it proceeds from an agent of the insured, whose duty it is to give the intelligence. 7579. Falsity. Sec 2579. A representation is to be deemed false when the facts fail to cor- respond with its assertions or stipulations. 7580. Effect of falsity. Sec 2580. If a representation is false in a material i:)oint, whether affinnative or promissory, the injured party is entitled to rescind the contract from the time when the representation becomes false. 7581. Materiality. Si;c. 2581. The materiality of a reiDresentation is detennined by the same i-ule as the materiality of a concealment. 7582. Appliralion of provviions of this article. Si c. 2o82. The provisions of this article api:)]y as well to a modification of a contract of insurance^as to its original foi-mation. 7583. RirjIU to rescind, v-hen exercised. Sec 2583. Whenever a right to rescind a contract of insurance is given to the 824 INSUEANCE. 7583-7597 insurer by any provision of this chapter sucli right may be exercised at any time previous to the commencement of an action on the contract. [Ncrc srrtion, approved March 30, 1874; Amendments 1873-4, 255; took effect July 1, 1874. ARTICLE VI. THE POLICY. 7586. PolicT/, ivhat. Sec. 2586. The written instrument, in which a contract of insurance is set forth, is called a policy of insurance. 7587. What must be specified in a polici/. Sec. 2587. A jDolicy of insurance must specify: 1. The parties between whom the contract is made; 2. The rate of premium; 3. The property or life insured; 4. The interest of the insured in property insured, if he is not the absolute owner thereof; 5. The risks insured against; and, 6. The period during which the insurance is to continue. 7588. Wliose interest is covered. Sec. 2588. When the name of the person intended to be insured is specified in a policy, it can be applied only to his own proper interest. 7589. Insurance by agent of trustee. Sec. 2589. When an insurance is made by an agent or trustee, the fact that his princijDal or beneficiary is the person really insured may be indicated by describing him as agent or trustee, or by other general words in the pohcy. 7590. Insurance by part oivner. Sec. 2590. To render an insurance, effected by one partner or part owner, applicable to the interest of his coj)artners, or of other part owners, it is neces- sary that the terms of the policy should be such as are applicable to the joint or common intei'est. 7591. General terms. Sec 2591. When the description of the insured in a policy is so general that it may comj^rehend any person or any class of persons, he only can claim the benefit of the policy who can show that it was intended to include him. 7592. Successive oivners. Sec 2592. A policy may be so framed that it will inure to the benefit of whom- soever, during the continuance of the risk, may become the owner of the interest insured. . 7593. Transfer of the thing insured. Sec 2593. The mere transfer of a thing insiu-ed does not transfer the policy, but suspends it until the same person becomes the owner of both the policy and the thing insui'ed. 7594. Open and valued policies. Sec 2594. A policy is either open or valued. 7595. Open policy, what. Sec 2595. An open policy is one in which the value of the thing insured is not agreed upon, but is left to be ascertained in case of loss. 7596. Valued policy , tvhat. Sec 2596. A valued policy is one which expresses on its face an agreement that the thing insured shall be valued at a specified sum. 7597. Banning policy, ivhat. Sec 2597. A running policy is one which contemplates successive insurances, 825 7597-7G11 . CIYIL CODE. and which provides that the object of the policy may be from time to time defined, especially as to the sabjects of insurance, by additional statements or indorsements. 7598. Effect of receipt. Sec. 2598. An acknoAvledgment in a j^olicy of the receijit of premium is con- clusive evidence of its payment, so far as to make the policy binding, notwith- standing any stipulation therein that it shall not be binding until the premium is actually paid. 7599. Agreement not to transfer. Sec. 2599. An agreement made before a loss, not to transfer the claim of a person insxu-ed against the insurer, after the loss has haj)pened, is void. AETICLE YII. WARRANTIES. 7603. Wnrranty, expi'ess or implied. Sec. 2G03. A warranty is either express or implied. 7604. Form. Sec. 2G04. No i:)articular form of words is necessaiy to create a warranty. 7605. Wnrrantij mud he in policy. Sec 2005. Every express warranty, made at or before the execution of a pol- icy, must be contained in the jDolicy itself, or in another instrument signed by the insured, and referred to in the policy, as making a part of it. [Amend- ment, approved March 30, 1874; Amendments 1873-4, 255; took effect July 1, 1874.'^' 7606. Past, present, and future warranties. Sec. 2G06. A warranty may relate to the past, the j)resent, the future, or to any or all of these. 7607. Wai'ranty as to past or present. Sec 2G07. A statement in a policy, of a matter relating to the j^erson or thing insiu-ed, or to the risk, as a fact, is an exjjress warranty thereof. 7608. Warranty as to the future. Sec 2G08. A statement in a policy, which imports that it is intended to do or not to do a thing which materially affects the risk, is a warranty that such act or omission shall take place. 7609. Performance excused. Sec 2G09. When, before the time arrives for the perfonnance of a warranty relating to the future, a loss insured against happens, or performance becomes unlawful at the place of the contract, or impossible, the omission to fulfill the warranty does not avoid the policy. [Amendment, approved 3Iarch 30, 1874; Amendments 1873-4, 255; took effect July 1, 1874.^''' 7610. What acts avoid the policy. Sec 2610. The violation of a material warranty, or other material jirovision of a policy, on the part of either j^arty thereto, entitles the other to rescind. 7611. Policy may provide for avoidance. Sec 2611. A policy may declare that a violation of specified provisions thereof shall avoid it, otherwise the breach of an immaterial provision does not avoid the policy. (a) Original section: a part of the policy, for this purpose, even by agree- Sho. 2C0.'). Ev<'ry exprf'BB ■warranty, made at or liefore meut of the parties, the execution of a polii y, must Ix^ criiitiiiij<:(l iu the {h) The original section did not have the words " at policy itself, and auothir iustruineut, whi-.thf-r upon the place of the contract." the Bame jjaper or uot camiut be referred to as making 826 INSURANCE. 7G12-7622 7612. Breach without fraud. Sec. 2G12, A breach of warranty, witliout fraud, merely exonerates an insurer from the time that it occurs, or where it is broken in its inception prevents tbo policy from attaching to the risk. ARTICLE YIII. PREMIUM. 7616. When premium is earned. Sec. 261G. An insurer is entitled to payment of the premium ii.s soon us the thing insured is exposed to the peril insured against. 7617. Beturn of jJremium. Sec. 2617. A person insured is entitled to a return of premium paid as follows: 1. To the whole premium, if no part of his interest in the thing insured be exposed to any of the j^erils insured against; 2. Where the insiu-ance is made for a definite period of time, and the insured surrenders his policy, to such proportion of the premium as corresponds with the unexpired time, after deducting from the whole premium any claim for loss or damage under the policy which has jireviously accnied. [Amendment, ajyproved March 30, 1874; Amendments 1873-4, 256; took effect July 1, 1874.^"' 7618. When return not allowed. Sec. 2618. If a peril insured against has existed, and the insurer has been liable for any period, however short, the insured is not entitled to return of premiums, so far as that particular risk is concerned. [Amendment, approved March 30, 1874; Amendments 1873-4, 256; took effect July 1, 1874.^"' 7619. Beturn for fraud. Sec. 2619. A person insured is entitled to a return of the premium when the contract is voidable, on account of the fraud or misreiDresentation of the insurer, or on account of facts, of the existence of Avhieh the insured was ignorant with- out his fault; or when, by any default of the insured other than actual fraud, the insurer never incurred any liability under the j)olicy. 7620. Over-insurance by several insurer's. Sec. 2620. In case of an over-insurance by several insurers, the insured is entitled to a ratable return of the premium, proportioned to the amount by which the aggregate sum insured in all the policies exceeds the insurable value of the thing at risk. 7621. Contribution. Sec. 2621. When an over-insurance is effected by simultaneous policies, the insurers contribute to the premium to be returned in proportion to the amount insured by their respective policies. 7622. Broporfionate contribution. Sec. 2622. When an over-insurance is effected by successive policies, those only contribute to a return of the premium w^ho are exonerated by prior insur- ances from the liability assumed by them, and in joroportion as the sum for which the premium was paid exceeds the amount for which, on account of prior insurance, they could be made liable. (a) Original section: {!>) The original pertion had the fdllowinRsilflitlonnl Sec. 2617. A person insured is entitled to a return of clause: " unlisK tbt' insurance was for a definite period premium paid, or a ratable proportion thereof, if no of time, in which case he is entitled to a proi>ortionnte part of his interest in the thing insured is exposed to return under the preceding section." any of the perils insured against; or, -where the insur- ance is made for a definite period of time, if it is not exposed to such peril for the whole of that time. 827 7626-7 G37 CFV'IL CODE. ARTICLE IX. LOSS, 'TSSS. Pei'ils, remote and proximate. Sec. 2626. An insurer is liable for a loss of which a peril insured against was the proximate cause; although a peril not contemplated b}' the contract may have been a remote cause of the loss; but he is not liable for a loss of which the peril insured against was onl}- a remote cause. 7627. Lof^n incurred in rescue from peril. Sec. 2027. An insurer is liable where the thing insured is rescued from a peril insured against, that would otherwise have caused a loss, if in the course of such rescue the thing is exposed to a peril not insured against, which per- manentl}- deprives the insured of its possession, in whole or in part; or where a loss is caused bj eflbrts to rescue the thing insured from a peril insured against. 7628. Excepted perils. Sec. 2628. Where a peril is specially excepted in a contract of insurance, a loss which would not have occurred but for such peril, is thereby excepted; although the immediate cause of the loss was a peril which was not excepted. 7629. Exoneration of insurer. Sec. 2629. An insurer is not liable for a loss caused by the willful act of the insured; but he is not exonerated by the negligence of the insured, or of his agents or others. [Amendment, approved March 30, 1874; Amendments 1^1 ^-A, 256; took effect July 1, 1S14..^'^ ARTICLE X, NOTICE OF LOSS. 7633. Insurer exonerated by failure to give notice of loss. Sec 2633. In case of loss uj^on an insurance against fire, an insurer is exon- erated, if notice thereof be not given to him by some person insured, or entitled to the benefit of the insurance, without unnecessary delay. [Amendment , ap- Xivoved March 30, 1874; Amendments 1873-4, 256; took eff'ect July 1, 1874."^^ 7634. Preliminary pivoofs. Sec 2634. When preliminary proof of loss is required by a policy, the insured is not bound to give such proof as would be necessary in a court of justice; but it is sufficient for him to give the best evidence which lie has in his power at the time. 7635. Waivers of defects in notice, etc. Sec. 2635. All defects in a notice of loss, or in preliminar\' proof thereof, which the insured might remedy, and which the insurer omits to specify to him, without unnecessary delay, as grounds of objection, are waived. 7636. Waiver of delay. Sec 2036. Delay in the presentation to an insurer of notice or proof of loss is waived, if caused by any act of his, or if he omits to make objection promptly and sj^ecifically upon that ground. 7637. Certificate, xohen dispensed with. Sec 2637. If a policy requires, by way of preliminary jiroof of loss, the cer- tificate or testimony' of a person other than the insured, it is sufficient for the insured to use reasonable diligence to procure it, and in case of the refusal of (a) Tlio ori!,nnal Rcction, instead of " orof liiB agents (h) The original Bection did not have the words r otherK," had thf wordK •■ imr by fraud or uegliyence " ux^on an insurance against fire." Q the part of bis agents or others." 828 INSURANCE, 7G37-7G49 such person to give it, then to furnish reasonuLlo evidence to the insurer that such refusal was not induced by any just grounds of disbelief iu the facts necessary to be certified. ARTICLE XI. DOUBLE INSURANCE. 7641. Double insurance. Sec. 2G41. A double insurance exists where the same person is insured by several insurers separately in respect to the same subject and interest. 7642. Double insurance contribution. Sec. 2642, In case of double insurance, the several insurers are liable to pay losses thereon as follows: 1. In fire insurance, each insurer must contribute ratably towards the loss, without regard to the dates of the several policies; 2. In marine insurance, the liability of the several insurers for a total loss, whether actual or constructive, where the policies are not simultaneous, is in the order of the dates of the several policies: no liability attaching to a second or other subsequent policy except as to the excess of the loss over the amount of all previous policies on the same interest. If two or more policies bear date upon the same day, they are deemed to be simultaneous, and the liability of insurers on simultaneous policies, is to contribute ratably with each other. The insolvency of any of the insurers does not affect the proportionate liability of the other insurers. The liability of all insurers on the same marine interest for a partial or average loss, is to contribute ratably. [Amendment, approved 3Iarch 30, 1874; Amendme^its 1873-4, 257; took effect July 1, 1874. ^''> ARTICLE XII. reinsurance. 7646. Eeinsurance, what. Sec 2646. A contract of reinsurance is one by which an insurer procures a third person to insure him against loss or liability by reason of such original insurance. 7647. Disclosures required. Sec. 2647. Where an insurer obtains reinsurance, he must communicate all the representations of the original insured, and also all the knowledge and information he possesses, whether previously or subsequently acquired, which are material to the risk. 7648. Reinsurance presumed to be against liability. Sec 2648. A reinsurance is presumed to be a contract of indemnity against liability, and not merely against damage. 7649. Original insured has no interest. Sec 2649. The original insured has no interest in a contract of reinsurance. (a) Original section: BurerB, who, on paying it, may require the others to Sf.c. 21342. In case of double insurance, the insured contribute ratably thereto, may claim payment of a loss from any one of the iu- 829 7655-7665 CIVIL CODE. CHAPTER II. MARIN E IXSUK ANOE . Abticle I. Definition- op Marine Insueanck 7G55 II. Inscjkable Inteeesx 7659 III. CONCEALMKST 7669 IV. Rkpbesentations 7676 V. Implied Waueanties 7681 YI. The Voyage, and Deviation 7692 VII. Loss 7701 VIII. Abandonment. 7716 IX. Measuek of Indemnity 7736 ARTICLE I. • DEFINITION OF MARINE INSURANCE. 'IGSS. Marine insurance, lohat. Sec. 2G55. Marine insurance is an insurance against risks connected with, na^-igation, to which a ship, cargo, freightage, profits, or other insurable interest in movable property, may be exposed during a certain voyage or a fixed period of time. ARTICLE II. INSURABLE INTEREST. 7659. Insurable interest in a ship. Sec. 2Go9. The owner of a ship has in all cases an insurable interest in it, even when it has been chartered by one who covenants to pay him its value in case of loss. 7660. Interest reduced by bottomry. Sec. 26G0. The insurable interest of the owner of a ship hypothecated by bottomiy is ouly the excess of its value over the amount secured by bottomry. 7661. Freightage, ichat. Sec. 2661. Freightage, in the sense of a policy of marine insurance, signifies all the benefit derived by the owner, either from the chartering of the ship or its employment for the carriage of his own goods or those of others. 7662. Expected freightage. Sec. 2G62. The owner of a ship has an insurable interest in expected freightage which he would have certainly' earned but for the intervention of a peril insured against. 7663. Interest in expected freightage, ivhat. Sec. 2GG3. The interest mentioned in the last section exists, in the case of a charter party, when the ship has broken ground on the chartered voyage, and if a price is to be paid for the carriage of goods when they are actually on board, or there is some contract for i^utting them on board, and both ship and goods are ready for tlie specified voyage. 7664. Insurable interest in pr(ftts. Sec 2GG4:. One who has an interest in the thing from which profits are ex- pected to proceed, h;is an insurable interest in the profits. 7665. Insurable interest of charterer. Sec. 2GG5. The charterer of a ship has an insurable interest in it, to the extent that he is liable to be damnified by its loss. 830 INSURANCE. 7GG9-7G82 ARTICLE III. CONCEALMENT. 7669. Information must be comviunicaled. Sko. 20(59. In marine insurance each joarty is bound to comniunicnte, in addition to what is required by section 25G3, all the information wliich lie jios- sesses, material to the risk, except such as is mentioned in section 25G4, and to state the exact and whole truth in relation to all matters that he represents, or upon inquii-y assumes to disclose. 7670. Material inforviation. Sec. 2670. In marine insurance, information of the belief or expectation of a third person, in reference to a material fact, is material. 7671. Presumption of knowledge of loss. Sec. 2671. A person insured by a contract of marine insurance is presumed to have had knowledge, at the time of insuring, of a prior loss, if the informa- tion might joossibly have reached him in the usual mode of transmission, and at the usual rate of communication. 7672. Concealments tvhich only affect the risk in question. Sec. 2672. A concealment in a marine insurance, in respect to aiij of the fol- lowing matters, does not vitiate the entire contract, but merely exonerates the insurer from a loss resulting from the risk concealed: 1. The national character of the insured; 2. The liability of the thing insured to capture and detention; 3. The liability to seizure from breach of foreign laws of trade; 4. The want of necessary documents; and, 5. The use of false and simulated papers. ARTICLE IV. REPRESENTATIONS. 7676. Effect of intentional falsity. Sec 2676. If a representation, by a person insured by a contract of marine insurance, is intentionally false in any respect, whether material or immaterial, the insurer may I'escind the entire contract. 7677. Eepresentation of expectation. Sec. 2677. The eventual falsity of a representation as to expectation does not, in the absence of fraud, avoid a contract of insurance. ARTICLE V. IMPLIED WARRANTIES. 7681. Warranty of seaworthiness. Sec. 2681. In every marine insurance upon a ship or freight, or freightage, or upon anything which is the subject of marine insurance, a warranty is implied that the ship is seaworthy. [Amendment, approved March 30, 1874; Amendments 1873-4, 257; took effect July 1, 1874.^''> 7682. Seaworthiness, what. Sec. 2682. A ship is seaworthy, when reasonably fit to perform the sei-rices, and to encounter the ordinary perils of the voyage, contemplated by the parties to the policy. (a) Original section: owner, unleBS made for a epecified length of time, a Sec. 2681. In every marine insurance upon ship or warranty is Implied that the 6hip BhaU be eeaworthy. freightage, or upon anything belonging to the ship- 831 7683-7693 CH^IL CODE. 7683. Seaiooiihiness, ivhen must exUt. Sec. 2683. An implied warranty of seaworthiness is complied with if the ship be seaworthy at the time of the commencement of the risk, except in the follow- ing cases: 1. When the insurance is made for a specified length of time, the implied warranty is not complied with unless the ship be seaworthy at the commence- ment of every voyage she may undertake during that time; and, 2. When the insurance is upon the cargo, which, by the terms of the policy or the description of the voyage, or the established custom of the trade, is to be transshipped at an intermediate port, the implied warranty is not complied with, unless each vessel upon which the cargo is shipped or transshipped be seaworthy at the commencement of its particular voyage. [Amendment, appi'oved March 80, 1874; Amendments 1873-4, 257; took efeet July 1, 1874.^^' 7684. Wlmt things are required to constitute seaioorthiness. Sec. 2684. A warrant}^ of seaworthiness extends not only to the condition of the structui-e of the ship itself, but i-equires that it be properly laden, and pro- vided with a competent master, a sufficient nvimber of competent officers and seamen, and the requisite ai^purtenances and equij^ments, such as ballast, cables and anchors, cordage and sails, food, water, fuel, and lights, and other necessary or proper stores and implements for the voyage. 7685. Different degrees of seaworthiness at different stages of the voyage. Sec. 2685. Where different portions of the voyage contemplated by a policy differ in respect to the things requisite to make the ship seaworthy therefor, a warranty of seaworthiness is complied with if, at the commencement of each portioil, the ship is seaworthy with reference to that portion. 7686. Unseaicorthiness during the voyage. Sec. 2686. When a ship becomes unseaworthy duiing the voyage to which an insurance relates, an unreasonable delay in repairing the defect exonerates the insurer from liability from any loss arising therefrom. 7687. Seaxvorthiness for purposes of insurance on cargo. Sec. 2687. A ship which is seaworthy for the purjDose of an insurance upon the ship may, nevertheless, by reason of being unfitted to receive the cargo, be unseaworthy for the purpose of insurance upon the cargo. 7688. Neutral papers. Sec. 2688. Where the nationality or neutrality of a ship or cargo is expressly warranted, it is implied that the ship will carry the requisite documents to show Buch nationality or neutrality, and that it will not carry any documents which cast reasonable suspicion thereon. ARTICLE VI. THE VOYAGE AND DEVIATION. 7692. Voyage insured, how determined. Sec 2692. When the voyage contemplated by a policy is described by the places of beginning and ending, the voyage insured is one which conforms to the course of sailing fixed by mercantile usage between those places. 7693. Course of sailing, Jioiv determined. Sec. 2693. If the course of sailing is not fixed by mercantile usage, the voyage insured by a policy is the way between the j^laces specified, which, to a master of ordinary skill and discretion, would seem the most natural, direct, and advan- tageous. (a) Original section: complied with if the Bhip is seaworthy at the time of Bko. 2683. An implied warrauty of seaworthiness is the commencement of the ris):. 832 INSURANCE. 7G94-7707 7694. Deviation, what. Sec. 2094. Deviation is a departure from the course of the voya^'O insured, mentioned in the last two sections, or an unreasonable delay in pursuinj^f the voyage, or the commencement of an entirely different voyage. 7695. When proper. Sec. 2G95. A deviation is proper: 1. When caused by circumstances over Avhich neither the master nrjr the owner of the ship has any control; 2. When necessary to comply with a warranty, or to avoid a peril, whether insured against or not; 3. When made in good faith, and upon reasonable gi-ounds of belief in its necessity to avoid a peril; or, 4. When made in good faith, for the purpose of saving human life, or reliev- ing another vessel in distress. 7696. Mhen improper. Sec. 2696. Every deviation not specified in the last section is improper. 7697. Deviation exonerates the insurer. Sec. 2697. An insurer is not liable for any loss happening to a thing insured subsequently to an imj)roper deviation. ARTICLE VII. LOSS. 7701. Total and partial loss. Sec. 2701. A loss may be either total or partial. 7702. Partial loss. Sec. 2702. Eveiy loss which is not total is partial. 7703. Actual and constructive total loss. Sec. 2703. A total loss may be either actual or constructive. 7704. Actual total loss, what. Sec. 2704. An actual total loss is caused by: 1. A total destruction of the thing insured; 2. The loss of the thing by sinking, or by being broken up; 3. Any damage to the thing which renders it valueless to the owner for the jDurposes for which he held it; or, 4. Any other event which entirely deprives the owner of the possession, at the port of destination, of the thing insured. 7705. Constructive total loss. Sec. 2705. A constructive total loss is one which gives to a person insured a right to abandon, under section 2717, 7706. Presumed actual loss. Sec. 2706. An actual loss may be presumed from the continued absence of a ship without being heard of; and the length of time which is sufficient to raise this presumption depends on the circumstances of the case. 7707. Insurance on cargo ivhen voyage broken up. Sec. 2707. When a ship is i^revented, at an intermediate port, from complet- ing the voyage, by the perils insured against, the master must make every exer- tion to procure, in the same or a contiguous port, another ship, for the purpose of conveying the cargo to its destination; and the liabihty of a marine insurer thereon continues after they are thus reshipped. [Amendment, approved March 30, 1874; Amendments 1873-4, 258; took effect July 1, 1874.'"' (a) The original Bectiou did not have the words " by the perils insured against." 53 833 7708-7717 CIVIL CODE. 7708. Cost ofreshipment, etc. Sec. 2708. In addition to the liability mentioned in the last section, a marine iusuver is bound for damages, expenses of discharging, storage, reshipment, extra freightage, and all other expenses incurred in saving cargo reshipped pursuant to the last section, up to the amount insured. 7709. When insured is entitled to payment. Sec. 2709. Upon an actual total loss, a person insured is entitled to payment "without notice of abandonment. 7710. [Sec. 2710'"' was repealed by act approved March 30, 1874; Amendments 1873-4, 258; took efiect July 1, 1874.] 7711. Average loss. Sec. 2711. "SVhere it has been agreed that an insurance upon a particular thing or class of things shall be free from particular average, a marine insurer is not liable for any particular average ^loss not depriving the insured of the possession, at the port of destination, of the whole of such thing, or class of things, even though it become entirely worthless, but he is liable for his pro- portion of all general average loss assessed upon the thing insured. [Amend- ment, approved March 30, 1874; Amendments 1873-4, 258; took effect Julyl, 1874.*^' 7712. Insurance against total loss. Sec. 2712. An insurance confined in terms to an actual total loss, does not cover a constructive total loss, but covers any loss which necessarily results in depriving the insured of the j^ossession, at the port of destination, of the entire thing insured. [Amendment, approved March 30, 1874; Amendments 1873-4, 259; took effect July 1, 1874.'*=' ARTICLE VIII. ABANDONMENT. 7716. Abandonment, ichat. Sec. 271G. Abandonment is the act by which, after a constructive total loss, a person insured by contract of marine insurance declares to the insurer that he relinquishes to him his interest in the thing insured. 7717. When insured may abandon. Sec. 2717. A person insured by a contract of marine insurance may abandon the thing insured, or any particular portion thereof separately valued by the policy, or otherwise separately insured, and recover for a total loss thereof, when the cause of the loss is a peril insured against: 1. If more than half thereof in value is actually lost, or would have to be expended to recover it from the peril; 2. If it is injured to such an extent as to reduce its value more than one half; 3. If the thing insured, being a ship, the contemplated voyage cannot be lawfully performed without incurring an expense to the insured of more than half the value of the thing abandoned, or without incurring a risk which a pru- dent man would not take under the circumstances; or, 4. If the thing insured, being cargo or freightage, the voyage cannot be per- formed nor another ship procured by the master, within a reasonable time and with reasonable diligence, to forward the cargo, without incurring the like ex- pense or risk. But freightage cannot in any case be abandoned, unless the ship is also abandoned. (a) I{(i)pale(l Bcction: average " before the word " loss," and did not have the Skc. 2710. Where profits are insured, but the goodB laist elniiKe, coiumencing with the words "but he is are not insured, a marine insurer is not liable for a liable for his i^roportion." constructive totttllosB unlessthe insured offerstoaban- (c) The original section did not have the word don the goods. " actuitl." It liml at the end the additional words " and (6) The original section did not have "particular also a general average loss." 834 INSURANCE. 7718-7731 7718. 3fust be unqualified. Sec. 2718. An abandonment must be neither partial nor conditional. 7719. When may be made. Sec. 2719. An abandonment must be made within a reasonable time after the information of the loss, and after the commencement of the voyage, and before the party abandoning has information of its completion. 7720. Abandonment may be defeated. Sec. 2720. Where the information upon which an abandonment has been made proves incorrect or the thing insured was so far restored when the aban- donment was made that there was then in fact no total loss, the abandonment becomes ineffectual. 7721. Hoiv made. Sec. 2721. Abandonment is made by giving notice thereof to the insurer, which may be done orally, or in Avriting. 7722. Requisites of notice. Sec. 2722. A notice of abandonment must be explicit, and must specify the particular cause of the abandonment, but need state only enough to show that there is probable cause therefor, and need not be accompanied with proof of interest or of loss. 7723. No other Cause can be relied on. Sec. 2723. An abandonment can be sustained only upon the cause specified in the notice thereof. 7724. Effect. Sec. 2724. An abandonment is equivalent to a transfer, by the insured, of his interest, to the insurer, with all the cbances of recovery and indemnity. 7725. Waiver of former abandonment. Sec. 2725. If a marine insurer pays for a loss as if it were an actual total loss, he is entitled to whatever may remain of the thing insured, or its proceeds or salvage, as if there had been a formal abandonment. 7726. Agents of the insured become agents of the insurer. Sec. 2726. Upon an abandonment, acts done in good faith by those who were agents of the insured in respect to the thing insured, subsequent to the loss, are at th^ risk of the insurer, and for his benefit. 7727. Acceptance not necessary. Sec. 2727. An acceptance of an abandonment is not necessary to the rights of the insured, and is not to be presumed from the mere silence of the insurer, upon his x'eceiving notice of abandonment. 7728. Acceptance conclusive. Sec. 2728. The acceptance of an abandonment, whether expressed or implied, is conclusive upon the parties, and admits the loss and the sufficiency of the abandonment. 7729. Accepted abandonment, irrevocable. Sec. 2729. An abandonment once made and accepted is irrevocable, unless the ground upon which it was made proves to be unfounded. 7730. Freightage, how affected by abandonment of ship. Sec. 2730. On an accepted abandonment of a ship, freightage earned pre- vious to the loss belongs to the insurer thereof; but freightage sub.sequently earned belongs to the insurer of the ship. 7731. Refusal to accept. Sec. 2731. If an insurer refuses to accept a valid abandonment, he is hable 835 7731-7742 CIVIL CODE. as upon an actual total loss, deducting from the amoiint any proceeds of the thing insured which may have come to the hands of the insured. 7732. Omi! 7746. One third new for old. Sec. 2746. In the case of a partial loss of a ship or its equipments, the old materials are to be applied towards payment for the new, and whether the ship is new or old, a marire insurer is liable for only two thirds of the remaining cost of the repairs, except that he must joay for anchors and cannon in full, and for sheathing metal at a depreciation of only two and one half per cent, for each month that it has been fastened to the ship. CHAPTEE III. FIRE INSURANCE. [Sec. 2752^^" was repealed by act approved March 30, 1874; Amendments 1873-4, 259; took effect July 1, 1874.] 7753. Alteration increasing risk. Sec. 2753. An alteration in the use or condition of a thing insured from that to which it is Limited by the policy, made without the consent of the insurer, by means within the control of the insured, and increasing the risk, entitles an insurer to rescind a contract of fire insurance. 7754. Alteration not increasing risk. Sec 2754. An alteration in the use or condition of a thing insured from that to which it is limited by the policy, which does not increase the risk, does not affect a contract of fire insurance. 7755. Acts of the insured. Sec 2755. A contract of fire insurance is not affected by any act of the insured subsequent to the execution of the policy, which does not violate its provisions, even though it increases the risk and is the cause of a loss. (a) The original section consisted of the first sen- concealment, nor by the falsity of a repreBrntntlon not teuce alone, down to and including the words "right inserted in the policy, though in a material particular, to contribution." unless made with a fraudulent intent. ( h ] Repealed section : Sec. 2752. An insurance against fire is not afiectedby 837 77o6-77GG CIVIL CODE. 7756. Measure of indemnity. Sec. 2756. If there is no valuation in the policy, the measure of indemnity in an insurance against fire is the expense, at the time that the loss is payable, of rei^lacing the thing lost or injured in the condition in which it was at the time of the injury; but the effect of a valuation in a policy of fire insurance is the same as in a policy of marine insurance. CHAPTER IV. LIFE AND HEALTH INSURANCE. 7762. Insurance upon life, xclien2')ayahle. Sec. 2702. An insurance upon life may be made i:)a3'able on the death of the person, or on his sur\dving a specified period, or j)eriodically so long as he shall live, or otherwise contingently on the continuance or determination of life. 7763. Insurable inteirsi. Sec. 2763. Eveiy person has an insurable interest in the life and health: 1. Of himself; 2. Of auy person on whom he depends wholly or in part for education or support; 3. Of any person under a legal obligation to him for the payment of money, or respecting property or services, of which death or illness might delay or pre- vent the i^erformance; and 4. Of auy person upon whose life any estate or interest vested in him depends. 7764. Assignee, etc., of life policy need have no interest. Sec. 2764. A policy of insurance upon life or health may i:)ass by transfer, will, or succession to any person, whether he has an insurable interest or not, and such person may recover upon it whatever the insured might have recovered. 7765. Notice of transfer. Sec. 2765. Notice to an insurer of a transfer or bequest thereof is not neces- sary to presen-e the validity of a policy of insurance uj^on life or health, unless thereby expressly required. 7766. Measure of indemnity. Sec. 2766. Unless the interest of a person insured is susceptible of exact pecuniary measurement, the measure of indemnity under a policy of insurance upon life or health is the sum fixed in the policy. Au Act to regulate the forfeiture of policies of life insurance. Approved February 2, 1872; 1871-2, 59. Life policies not to become forfeited except to ascertain extent. Section 1. No policy of insurance on life hereafter issued by any comj^any incorporated under the laws of this state shall be forfeited or become void by the non-payment of premium thereon, any further than regards the right of the party insured therein to have it continued in force beyond a certain i:)eriod, to be determined as follows, to wit: the net value of the policy when the premium becomes due and is not paid shall be ascei'tained according to the American experience life table rate of mortality, with interest at four and a half per centum per annum, or the same interest which has been assumed in finding the net value of the policy, after deducting from such net value any indebtedness to the company, or notes held b}- the comjoany against the insured, which notes, if given for jiremium, shall then be canceled. Four fifths of what remains shall be considered as a net single premium of temporary insurance, and the term for which it will insure shall be determined according to the age of the party at the time of the lapse of j)remium and the assumption of mortality and interest aforesaid. 838 INDEMNITY. 77GG-7778 Insurance due on death of insured. Seo. 2. If the death of the party occur within the term of the temporaiy in- surance covered by the A^ahie of the policy, as determined in the ]>revious section, and if no condition of the insurance otlier than the payment of the premium shall have been violated by the insured, the company shall be bound to pay the amount of the policy the same as if there had been no lajise of premium, anything in the policy to the contrary notwithstandiiiff; provided, however, that notice of the claim and proofs of death shall be subn)ittcd to the company within six months of the decease; and provided, also, that the com- pany shall have the right to deduct from the amount insured in the policy the amount, at ten per centum per annum, of the jDremium that has been forborne at the time of the death. Sec. 3, This act shall take effect immediately. TITLE XII. Si 7772. Indemnity, what. Sec. 2772. Indemnity is a contract by which one engages to save another from a legal consequence of the conduct of one of the parties, or of some other person. 7773. Indemnify agauist future wrongful act void. Sec. 2773. An agreement to indemnify a person against an act thereafter to be done, is void, if the act be known by such person at the time of doing it, to be unlawful. [Amendment, approved March 30, 1874; Amendments 1873-4, 259; took effect July 1, 1874.^"' 7774. Indemnity for a past wrongful act valid. Sec. 2774. An agreement to indemnify a j^erson against an act already done, is valid, even though the act was known to be wrongful, unless it was a felony. 7775. Indemnity extends to acts of agents. Sec. 2775. An agreement to indemnify against the acts of a certain person, applies not only to his acts and their consequences, but also to those of his agents. 7776. Indemnity to several. Sec. 2776. An agreement to indemnify several persons applies to each, unless a contrary intention appears. 7777. Persons indemnifying liable jointly or severally ivith person indemnified. Sec. 2777. One who indemnifies another against an act to be done by the latter, is liable jointly with the person indemnified, and separately, to every person injured by such act. 7773. Hides for interpreting agreement of indemnity. Sec. 2778. In the interpretation of a contract of indemnity, the following rules are to be applied, unless a contrary intention api)ears: 1. Upon an indemnity against liability, expressly, or in other equivalent terms, the person indemnified is entitled to recover upon becoming liable; 2. Upon an indemnity against claims, or demands, or damages, or costs, expressly, or in other equivalent terms, the person indemnified is not entitled to recover without payment thereof; The original section, instead of " unlawful," had the word " wrongful." 839 7778-7787 CIVIL CODE. 3. An indemnity ag-ainst claims, or demands, or liability, expressly, or in other equivalent tenns, embraces the costs of defense against such claims, de- mands, or liability incurred in good faith, and in the exercise of a reasonable discretion; 4. The person indemnifying is bound, on request of the person indemnified, to defend actions or proceedings brought against the latter in respect to the matters embraced by the indemnity, but the person indemnified has the right to conduct such defenses, if he chooses to do so; 5. If, after request, the i:)erson indemnifying neglects to defend the person indemnified, a recovery against the latter suffered by him in good faith, is con- clusive in his favor against the former; 6. If the person indemnifying, whether he is a principal or a surety in the agreement, has not reasonable notice of the action or proceeding against the person indemnified, or is not allowed to control its defense, judgment against the latter is only presumptive evidence against the former; 7. A stipulation that a judgment against the person indemnified shall be con- clusive ujwn the person indemnifying, is inaj)plicable if he had a good defense upon the merits, which by want of ordinary care he failed to establish in the action. 7779. When person indemnifying is a surety. Sec. 2779. "WTiere one, at the request of another, engages to answer in dam- ages, whether liquidated or unliquidated, for any violation of duty on the part of the latter, he is entitled to be reimbui'sed in the same manner as a surety, for whatever he may jDay. 7780. Bail, what. Sec. 2780. Upon those contracts of indemnity which are taken in legal pro- ceedings as security for the performance of an obligation imposed or declared by the tribunals, and known as undertakings or recognizances, the sureties are called bail. 7781. How regulated. Sec. 2781. The obligations of bail are governed by the statutes specially applicable thereto. TITLE XIII. Chapter I. Guaranty in General. 7787 II. SCBETYSHIP 7831 CHAPTER I. GUARANTY IN GENERAL. AkTICLK I. DKriN'ITION OF GaARANTY 7787 II. Ckkation of Guaranty 7792 III. I.STKUPHETATIOS OF GUARANTY 7799 IV. LiAiJiLiTY OF Guarantors 7806 V. CoNTiNuiNO Guaranty 7814 VI. Exoneration of Guabantors 7819 AETICLE I. DEFINITION OF GUARANTY. 7787. Guaranty, tchat. Sec 2787. A guaranty is a promise to answer for the debt, default, or mis- carriage of another person. 840 GUARANTY. 7788-7799 7788 Knowledge of principal not necessary to creation of guaraniy. Sec. 2788. A person may become guarantor even without the knowledge or consent of the jJi'incipal. ARTICLE II. CREATION OF GUARANTY. 7792. Necessity of a consideration. Sec 2792. Where a guaranty is entered into at tlie same time with the original obligation, or with the acceptance of the latter by the guarantee, and forms with that obligation a part of the consideration to him, no other consideration need exist. In all other cases there must be a consideration distinct from that of the original obligation. 7793. Guaranty to be in writing, etc. Sec. 2793. Except as prescribed by the next section, a guaranty must be in writing, and signed by the guarantor; but the writing need not express a con- sideration. 7794. Engagement to answer for obligation of another, when deemed original. Sec. 2794. A promise to answer for the obligation of another, in any of the following cases, is deemed an original obligation of the promisor, and need not be in writing: 1. Where the promise is made by one who has received property of another upon an undertaking to apply it pursuant to such promise; or by one who has received a discharge from an obligation in whole or in part, in consideration of such j)romise; 2. Where the creditor parts with value, or enters into an obligation, in con" sideration of the obligation in respect to which the promise is made, in terms or under circumstances such as to render the party making the promise the principal debtor, and the person in whose behalf it is made his surety; 3. Where the promise, being for an antecedent obligation of another, is made upon the consideration that the party receiving it cancels the antecedent obliga- tion, accepting the new promise as a substitute therefor; or upon the considera- tion that the party receiving it releases the property of another from a lexj, or vis person from imprisonment under an execution on a judgment obtained upon *ie antecedent obligation; or upon a consideration beneficial to the promisor, ■hether moving from either party to the antecedent obligation, or from another Jrson; t. Where a factor undertakes, for a commission, to sell merchandise and g\ranty the sale; \ Where the holder of an instrument for the payment of money, upon which a tird person is or may become liable to him, transfers it in payment of a pre- ceon the default of the debtor, liable to those who gave credit in compliance with its terms. 7861. Letters of credit either general or special. Sec 2861. A letter of credit is either general or special. When the request for credit in a letter is addressed to specified persons by name or desciiption, the letter is special. All other letters of credit are general. 7862. Nature of general letter of credit. Sec 2862. A general letter of credit gives any person to whom it may be shown authority to comply with its request, and by his so doing it becomes, aa to him, of the same effect as if addressed to him by name. 7863. Extent of general letter of credit. Sec 2863. Several persons may successively give credit upon a general letter. 7864. A letter of credit may be a continuing guaranty. Sec 2864, If the parties to a letter of credit appear, by its terms, to contem- plate a course of future dealing between the parties, it is not exhausted by giving a credit, even to the amount limited by the letter, which is subsequently reduced or satisfied by j)aynients made by the debtor, but is to be deemed a continuing guaranty. 845 7865-7876 CIYIL CODE. 7865. When notice to the writer necessary. Sec. 28G5. The writer of a letter of credit is liable for credit given upon it "without notice to him, unless its terms express or imply the necessity of giving notice. 7866. The credit given must agree ivilh the terms of the letter. Sec. 2866. If a letter of credit prescribes the persons by whom, or the mode in which, the credit is to be given, or the term of credit, or limits the amount thereof, the writer is not bound except for transactions which, in these respects, conform strictlv to the terms of the letter. TITLE XIV. §mu Chajptee I. Liens rN General 7872 •II. Mortgage 7920 III. Pledge 7986 IV. Bottomry 8017 V. Respondentlv. 8036 VI. Other Liens 8046 VII. Stoppage in Transit 8076 CHAPTER I. LIENS IN GENERAL. Article I. Definition op Liens 7872 II. Cekation of Liens 7881 III. Effect of Liens 7888 IV. Peioeity of Liens 7897 V. Eedemption feom Liens 7903 VI. Extinction of Liens 7909 ARTICLE I. DEIINITION nV TTT7XTO g 2872. Insert after "imposed," " in some mode other than by a transfer in trust." [In effect April 16, 1878. § 1180 C. property by whicll it is C. P. was the same as this section, and is not amended.] '■ ■'■ J ' >/ 7873. Liens, general or special. Sec. 2873. Liens are either general or special. 7874. General lien, what. Sec. 2874. A general lien is one w^hich the holder thereof is entitled to en- force as a security for the performance of all the obligations, or all of a partic- ular class of obligations, which exist in his favor against the owner of the property. 7875. Special lien, what. Sec. 2875. A special lien is one which the holder thereof can enforce only as security for the performance of a particular act or obligation, and of such obli- gations as may be incidental thereto. 7876. Prior liens. Sec. 2876. Where the holder of a special lien is compelled to satisfy a prior lien for his own protection, he may enforce payment of the amount so paid by him, as a part of the claim for which his own lien exists. 846 LIEN. 7877-7898 7877. Conti-acts subject to provisions of this chapter. Sec. 2877. Contracts of mortgage, pledge, Lottomn', or respondentia, are subject to all the provisions of tLis chapter. ARTICLE II. CllEATION OF LIEXS. 7881. Lien, how created. Sec. 2881. A lien is created: 1. By contract of the parties; or, 2. By operation of law. 7882. No lien for claim not due. Sec. 2882. No lien arises by mere operation of law until the time at which the act to be secured thereby ought to be performed. 7883. Lien on future interest. Sec. 2883. An agreement may be made to create a lien upon property not yet acquired by the party agreeing to give the lien, or not yet in existence. In such case the lien agreed for attaches from the time when the party agreeing to give it acquires an interest in the thing, to the extent of such interest. 7884. Lien may be created by contract. Sec. 2884. A lien may be created by contract, to take immediate effect, as security for the performance of obligations not then in existence. ARTICLE III. EFFECT OF LIENS. 7888. Lien, or contract for lien, transfers no title. Sec 2888. Notwithstanding an agreement to the contrary, a lien, or a con- tract for a lien, transfers no title to the property subject to the lien. 7889. Certain contracts void. Sec. 2889. All contracts for the forfeiture of propert}' subject to a lien, in satisfaction of the obligation secured thereby, and all contracts in restraint of the right of redemption from a lien, are void. 7890. Creation of lien does not imply personal obligation. Sec. 2890. The creation of a lien does not of itself imply that any person is bound to perform the act for which the lien is a security. 7891. Uxtent of lien. Sec. 2891. The existence of a lien upon property does not of itself entitle the person in whose favor it exists to a lien upon the same property for the perform- ance of any other obligation than that which the lien originally secured. 7892. Holder of lien not entitled to compensation. Sec. 2892. One who holds property by virtue of a lien thereon, is not entitled to compensation from the owner thereof for any trouble or expense which he incurs respecting it, except to the same extent as a borrower, under sections 1892 and 1893. ARTICLE IV. PRIORITY OF LIENS. 7897. Priority of liens. Sec. 2897. Other things being equal, different liens upon the same property have priority according to the time of their creation, except in cases of bottomry and respondentia. 7898. Priority of mortgage for price. Sec. 2898. A mortgage given for the price of real property, at the time of its 847 7898-7911 CIVIL CODE. conveyance, has i)riority over all other liens created against the purchaser, sub- ject to the operation of the recording laws. 7899. Order of resort to different funds. Sec. 2899. Where one has a lien upon several things, and other persons have subordinate liens upon, or interests in, some but not all of the same things, the person having the prior lien, if he can do so -without risk of loss to himself, or of injustice to other persons, must resort to the property in the following order, on the demand of any party interested : 1. To the things ujdou which he has an exclusive lien; 2. To the things which are subject to the fewest subordinate liens; 3. In like manner inversely to the number of subordinate liens upon the same thing; and, 4. "When several things are within one of the foregoing classes, and subject to the same number of liens, resort must be had — (1.) To the things which have not been transferred since the prior lien was created; (2.) To the things which have been so transferred without a valuable consid- eration; and, (3.) To the things which have been so transferred for a valuable consideration in the inverse order of the transfer. ARTICLE V. EEDEMPTION FEOM LIEN. 7903. PdgU to redeem. Sec. 2903. Every person, ha^dng an interest in property subject to a lien, has a right to redeem it from the lien, at any time after the claim is due, and before his right of redemption is foreclosed. 7904. Rights of inferior lienor. Sec. 2904. One who has a lien inferior to another, upon the same property, has a right: 1. To redeem the property in the same manner as its owner might, from the superior lien; and, 2. To be subrogated to all the benefits of the superior lien, when necessary for the protection of his interests, upon satisfying the claim secured thereby. 7905. Redemption from lien, hoiv made. Sec 2905. Redemption from a lien is made by performing, or offering to perform, the act for the perfoi'mance of which it is a security, and jmying, or offering to pay, the damages, if any, to which the holder of the lieu is entitled for delay. ARTICLE YI. EXTINCTIOX OF LIENS. 7909. Lien deemed accessory to act whose performance it secures. Sec. 2909. A lien is to be deemed accessory to the act for the performance of which it is a securitj', whether any person is bound for such performance or not, and is extinguishable in like manner with any other accessory obligation. 7910. Extinction by sale or conversion. Sec. 2910. The sale of any property on which there is a lieu, in satisfaction of the claim secured thereby, or in case of personal property, its wrongful con- version by the person holding the lien, extinguishes the lien thereon. 7911. Lien extinguished by lapse of time uiuhr statute of limitations. Sec 2911. Alien is distinguished by the lapse of the time within which, 848 LIEN. 7911-7925 under tlie provisions of the Code of Civil Procedure, can action can be brought uj^ou the jDrincipal obligation. 7912. Appo7'tionment of lien. Sec. 2912. The partial performance of an act secured by a lien does not ex- tinguish the lien ujion any part of the i:)roperty subject thereto, even if it is divisible. 7913. Bestoration of property extinguishes lien. Sec. 2913. The voluntary restoration of property to its owner l.)y the holder of a lien thereon, dependent upon possession, extinguishes the lien as to such property, unless otherwise agreed by the parties, and extinguishes it, notwith- standing any such agreement, as to creditors of the OAvner and persons subse- quently acquiring a title to the jDroperty, or a lien thereon, in good faith, and for a good consideration. [Amendment, approved 3Iarch 30, 1874; Amendments 1873-4, 260; took effect July 1, 1874.^^' CHAPTEE II. MORTGAGE. Aeticle I. MoETGAGES IN Geneeal 7920 II. MoETGAGEs OF Real Peopeuty 7947 III. Mortgages of Peesonal Pkopeexy 7955 AETICLE I. MORTGAGES IN GENERAL. 7920. Mortgage, what. Sec. 2920. Mortgage is a contract by which specific property is hypothecated for the performance of an act, without the necessity of a change of possession. 7921. Prope^'ty adversely held, may he mortgaged. Sec. 2921. A mortgage may be created upon jjroperty held adversely to the mortgagor. 7822. To he in writing. Sec. 2922. A mortgage can be created, renewed, or extended, only by writing, executed with the formalities required in the case of a grant of real property. 7923, Lien of a mortgage, lohen special. Sec. 2923, The lien of a mortgage is special, unless othenvise expressly agreed, and is independent of possession, 7924, Transfer of interest ivhen deemed a mortgage. Sec. 2924. Every transfer of an interest in property, other than in trust, made only as a security for the performance of another act, is to be deemed a mortgage, except when in the case of personal property it is accomi^anied by actual change of possession, in Avhich case it is deemed a pledge. [Amotdment, approved March 30, 1874; Amendments 1873-4, 2G0; took efect July 1, 1874.^''> 7925, Transfer made subject to defeasance may he proved. Sec. 2925. The fact that a transfer was made subject to defeasance on a con- dition, may, for the purpose of showing such transfer to be a mortgage, be proved (except as against a subsequent purchaser or incumbrancer for value and without notice), though the fact does not appear by the tenns of the in- strument. (a) The original section did not have the word " sub- merely transient purpose." 8e 7936. Mortgage passes by assignment of drht. Sec. 2930. The assignment of a debt secured by mortgage carries with it the ecurity. (a) The original fiection had the following arldi- (c) Original section: tional Beutence: "The priority of ai»i)lication of such Sec. 2!):)'). The record of the assignment of a mort- subseciui iitly a' quired title to BuccephiveuiortgagotB ia gage is not of itself notice to a mortgagor, his heirs or deteriiiiii'-d Vjy the existing rules of priority, when no personal representatives, bo as to iuvalidati- any pay- title ia subsequf-ntly acquired." nient made by them, or either of Ihem, to the mort- (6) The original secti'.in, instead of " as a mortgage," gagee. had the words " with a mortgage, but in a separate book." 850 LIEN. 7937-7947 7937. [Sec. 2937'"^ was repealed by act approved March 30, 1874; Amendineuts 1873-4, 261; took effect July 1, 1874.] 7938. Mortgage, how discharged. Sec. 2938. A recorded mortgage may be discharged by an entry iu the margin of the record thereof, signed by the mortgagee, or his personal representative or assignee, acknowledging the satisfaction of the mortgage in the presence of the recorder, who must certify' the acknowledgment in form substantially as follows: " Signed and acknowledged before me, this day of , in the year . A. B., Recorder." 7939. Same. Sec 2939. A recorded mortgage, if not discharged as provided in the pre- ceding section, must be discharged uj^on the record by the officer having custody thereof, on the presentation to him of a certificate signed by the mortgagee, his personal repi^esentatives or assigns, acknowledged or proved and certified as prescribed by the chapter on recording transfers, stating that the mortgage has been paid, satisfied, or discharged. 7940. Same. Sec 2940. A certificate of the discharge of a mortgage, and the proof or acknowledgment thereof, must be recorded at leugth, and a reference made in the record to the book and j)age where the mortgage is recorded, and in the minute of the discharge made upon the record of the mortgage to the book and page where the discharge is recorded. 7941. Duty of mortgagee on satisfaction of mortgage. Sec 2941. When any mortgage has been satisfied, the mortgagee or his assignee must immediately, on demand of the mortgagor, execute and deliver to him a certificate of the discharge thereof, and must, at the expense of the mortgagor, acknowledge the execution thereof so as to entitle it to be recorded , or he must enter satisfaction, or cause satisfaction of such mortgage to be en- tered of record; and any mortgagee, or assignee of such mortgage, who refuses to execute and deliver to the mortgagor the certificate of discharge, and to acknowledge the execution thereof, or to enter satisfaction or cause satisfaction to be entered of the mortgage, as provided in this chapter, is liable to the mort- gagor, or his grantee or heirs, for all damages which he or they may sustain by reason of such refusal, and also forfeit to him or them the sum of one hundred dollars. [Amendment, approved March 30, 1874; Amendments 1873-4, 261; took efect July 1, 1874.'"' 7942. Provisions of fliis chapter do not affect bottomry or respondentia. Sec 2942. Contracts of bottomry or respondentia, although in the nature of mortgages, are not affected by any of the provisions of this chapter. AETICLE II. mortgage of real property. 7947. Wliat real property may he mortgaged. Sec 2947. Any interest in real property which is capable of being transferred may be mortgaged. (a) Repealed section: mortgagee or his assignee must immediately, on de- Sec. 2937. A mortgagee is allowed, from the date of mand of the mortgagor, enter satisfaction or cause sat- the mortgage, one day for every twenty miles of the isfaction of such mortgage to be entered of record; and distance between hisresidence and the county recorder's any mortgagee or assignee ot such mortgagee who office where such mortgage ought by law to be recorded, neglects or refuses to enter satisfaction ot such mort- During such time the mortgage has the same effect as gage, as is iirovlded in this chapter, is liable in dam- if recorded ages to such mortgagor, or his grantee or hens, in the (6) Original section: sum of oi>e hundred dollars, to be recovered in a civil Sec. 2941. When any mortgage has been satisaed, the action before any court of competent jurisdiction. 851 7948-7955 CIYIL CODE. 7948. Form of mortgage. Sec. 2948. A mortgage of real property may be made in substantially the following form : This mortgage, made the day of , in the year • , by A. B., of , mortgagor, to C. D., of , mortgagee, witnesseth: That the mortgagor mortgages to the mortgagee [here describe the property], as security for the payment to him of dollars, on for before] the day of , in the year , with interest thereon [or as security for the payment of an obligation, describing it, etc.] A. B. 7949. [Sec 2949'"' was repealed by act approved March 30, 1874; Amendments 1873-4, 2G2; took effect July 1, 1874.] 7950. Defeasance to affect grant absolute on its face, must be recoixled. Sec 2950. When a grant of real j)roperty purports to be an absolute convey- ance, but is intended to be defeasible on the performance of certain conditions, such grant is not defeated or affected as against any person other than the r'-rantee or his heirs or devisees, or persons having actual notice, unless an iustrument of defeasance, duly executed and acknowledged, shall have been recorded in the office of the county recorder of the county where the j^roperty is situated. 7951. [Sec 2051'*' was repealed by act approved March 30, 1874; Amendments 1873-4, 2G2; took effect July 1, 1874.] 7952. Record of mortgages. Sec 2952. Mortgages of real property may be acknowledged or proved, cer- titied and recorded in like manner and with like effect, as grants thereof. [Amendment, aijproved 3Iarch 30, 1874; Amendments 1873-4, 2G2; took effect Jidy 1, 1874.'=^ AETICLE III. mortgage of personal PEOPERTr.. 7955. What personal property may be mortgaged. Sec 2955. Mortgages may be made upon : "*"§ 2955. Seventh line, read "surveyor" instead of "sur- ^ railroad; geon," and add : " Twelfth, the machinery, casks, pipes, tubs, 3hinists, foundrymen and and utensils used in the manufacture of wine, fruit brandy, and fruit syrup or sugar." 4. Mining machinery; 5. Printing presses and material; 6. Professional libraries; 7. Instruments of a surgeon, physician or dentist; 8. Upholstery and furniture used in hotels, lodging or boarding-houses, when mortgaged to secure the 2:)urchase-mohey of the articles mortgaged; 9. Growing crops; 10. Vessels of more than five tons burden; 11. Instruments, negatives, furniture and fixtures of a photograph gallery, [Amendment, approved April 3, 1870; Amendments 1875-6, 79; took effect sixtieth day after jjasmge.^'^'' (a) Repealed section : witbout reBorfinp: to the escfutor or aclnilnistrator of t-EC. 'i'J4'J. Eveiy grant of real property, or of any the imirtgat'iir, unit kb tlitrc in an expnps direction in f-state therein, wliicli appears by any other writing to the uill 8177. Bights and obligations of draioer. Sec. 3177. The rights and obligations of the drawer of a bill of exchange are the same as those of the first indorser of any other negotiable instrument. AKTICLE II. DAYS OF GRACE. 8181. Days of grace. Sec. 3181. Days of grace are not allowed. ARTICLE III. PRESENTMENT FOR ACCEPTANCE. 8185. When a bill may he presented. Sec. 3185. At any time before a bill of exchange is j^ayable, the holder may present it to the drawee for acceptance, and if acceptance is refused, the bill is dishonored. 8186. Presentment for acceptance, hoiv made. Sec. 3186. Presentment for acceptance must be made in the following man- ner, as nearly as by reasonable diligence it is practicable : 1. The bill must be presented by the holder or his agent; 2. It must be presented on a business day, and within reasonable hours; 3. It must be presented to the drawee, or, if he be absent from his place of residence or business, to some person having charge thereof, or employed therein; and, 4. The drawee, on such presentment, may postpone his acceptance or refusal until the next day. If the drawee have no place of business, or if his place of business or residence cannot, with reasonable diligence, be ascertained, pre- sentment for acceptance is excused, and the bill may be protested for non- (a) The original Ffction.instpad of the lapt Bfntence "4. If this cnnnot be done, then at the office of any commencint; with the v;< rds " if the drawee has no notary ijublic in the state." Ijlace of bubinttB," had a tourth subdivision as fol- lows: 868 NEGOTIABLE INSTRIBIENTS. 818G-8198 acceptance. [Amendment, approved March 30, 1874; Amendments 1873-4, 2G5; took effect July 1, 1874/='> 8187. Presentment to joint drawees. Sec. 3187. Preseutmeut for acceptance to one df several joint drawees, and refusal by him, dispenses with presentment to the others. 8188. When presentment to he made to drawee in case of need. Sec. 3188. A bill of exchange which specifies a drawee in case of need, must be presented to him for acceptance or payment, as the case may bo, before it can be treated as dishonored. 8189. Presentment, when must he made. Sec. 3189. When a bill of exchange is payable at a specified time after sight, the drawer and indorsers are exonerated if it is not presented for acceptance within ten days after the time which would suffice, with ordinary diligence, to , forward it for acceptance, unless presentment is excused. ARTICLE IV. ACCEPTANCE. 8193. Acceptance, how made. Sec. 3193. An acceptance of a bill must be made in writing, b}' the drawee or by an acceptor for honor, and may be made by the accej)tor writing his name across the face of the bill, with or without other words. 8194. Holder entitled to acceptance on face of bill. Sec. 3194. The holder of a bill of exchange, if entitled to an acceptance thereof, may treat the bill as dishonored if the drawee refuses to write across its face an unqualified accej)tance. 8195. What acceptance sufficient with consent of holder. Sec 3195. The holder of a bill of exchange may, without prejudice to his rights against prior jjarties, receive and treat as a sufficient acceptance: 1. An acceptance written upon any part of the bill, or upon a separate paper; 2. An acceptance qualified so far only as to make the bill payable at a par- ticular place within the city or town in which, if the accei)tance was unqualified, it would be payable; or 3. A refusal by the drawee to return the bill to the holder after ijresentment, in which case the bill is payable immediately, without regard to its terms. 8196. Acceptance by separate instrument. Sec 3196. The acceptance of a bill of exchange, by a sej:)arate instrument, binds the acceptor to one, who, upon the faith thereof, has the bill for value or other good consideration. 8197. Promise to accept, when equivalent to acceptance. Sec 3197. An unconditional promise, in writing, to accept a bill of exchange, is a sufficient acceptance thereof, in favor of every person who ujjon the faith thereof has taken the bill for value or other good consideration. 8198. Cancellation of acceptance. Sec 3198. The accej)tor of a bill of exchange may cancel his acceptance at any time before delivex'ing the bill to the holder, and before the holder has, with the consent of the acceptor, transferred his title to another j)erson who has given value for it upon the faith of such acceptance. , (a) The original section did not have the words " or of residence or business, or there is no person of dis- his agent" in the first subdivision. The third and cretion therein, then to any not^iry public in the state; fourtli subdivisions were as follows: and, " 3. It must be presented to the drawee, if he can be " 4. If the drawee requests it, the bill must be left found within the state; and if not, then at his place of with him until the same hour of the next day, to which residence or business, if within the statf , to any per- time he may postpone his acceptance or relusal." son of discretion therein; and if he has no such place 869 8199-8214 CIVIL CODE. 8189. Whal acceptance admits. Sec. 3199. The acceptance of a bill of excliange admits the signature of the drawer, but does not admit the signature of any indorser to be genuine. [Amendment, approved March 30, 1874; Amendments 1873-4, 265; took effect July 1, 1874.'"' AETICLE V. ACCEPTANCE OR PAYMENT FOR HONOR. 8203. When bill may be accepted or paid for honor. Sec. 3203. On the dishonor of a bill of exchange by the drawee, and, in case of a foreign bill, after it has been duly protested, it maybe accepted or j)aidby any person, for the honor of any party thereto. 8204. Holder of bill of exchange bound to accept payment for honor. Sec. 3204. The holder of a bill of exchange is not bound to allow it to be accepted for honor, but is bound to accej^t payment for honor. 8205. Acceptance for honor, hotv made. Sec. 3205. An acceptor or payor for honor must write a memorandum upon the bill, stating therein for whose honor he accepts or pays, and must give notice to such parties, with reasonable diligence, of the fact of such acceptance or payment. Having done so, he is entitled to reimbursement from such parties, and from all parties prior to them. 8206. Hoiv enforced. Sec. 3206. A bill of exchange which has been accepted for honor must be presented at its maturity to the drawee for payment, and notice of its dishonor by him must be given to the acceptor for honor, in like manner as to an indorser; after which the accej)tor for honor must i^ay the bill. 8207. Notice of dishonor not excused by acceptance for honor. Sec. 3207. The acceptance of a bill of exchange for honor does not excuse the holder from giving notice of its dishonor by the drawee. AETICLE VI. PRESENTMENT FOR PAYMENT. 8211. Preseyxtment, lohen bUl not accepted, where made. Sec. 3211. If a bill of exchange is by its terms payable at a particular place, and is not accepted on presentment, it must be presented at the same place for payment, when j^resentment for payment is necessary. 8212. Presentment of bill, pjayable at particular place. Sec. 3212. A bill of exchange, accej^ted payable at a particular place, must be i:)resented at that place for i)ayment, when presentment for payment is nec- essary, and need not be presented elsewhere. 8213. Effect of delay in pjresentment , in certain cases. Sec. 3213. If a bill of exchange, payable at sight or on demand, without in- terest, is not duly presented fur payment within ten days after the time in which it could, with reasonable diligence, be transmitted to the proper place for such presentment, the drawer and indorsers are exonerated, unless such presentment is excused. 8214. Effect-in other cases. Sec. 3214. Mere delay in presenting a bill of exchange payable, with interest, at sight or on demand, does not exonerate any party thereto. (a) Original Bt-ction: and if written upon tho bill, it also admits the same to Skc, :il9'J. The acreptance of a bill of exchnngn ad- Ix- gfimiiir, imd biuaiug upon thodrnwer; but it does mit8 the capacity of the drawer to draw and indorse it; not admit the signature of any indorser to be genuine. 870 NEGOTIABLE INSTRUMENTS. 8218-8232 ARTICLE VII. EXCUSE OF PKESENTMENT AND NOTICE. 8218. Presentment, when excused. Sec. 3218. The presentment of a bill of exchange for acceptance is excused if the drawee has not capacity to accept it. 8219. Delay, xolien excused. Sec. 3219. Delay in the presentment of a bill of exchanp^e for acceptance is excused, when caused by circumstances over which the holder has no control. 8220. Presentment and notice, when excused. Sec 3220. Presentment of a bill of exchange for acceptance or payment, and notice of its dishonor, are excused as to the drawer, if he forbids the drawee to accept, or the acceptor to pay the bill; or if, at the time of drawing, he had no reason to believe that the drawee would accept or pay the same. ARTICLE VIII. FOREIGN BILLS. 8224. Definitions. Sec. 3224. An inland bill of exchange is one drawn and payable within this state. All others are foreign. 8225. Protest necessary. Sec 3225. Notice of the dishonor of a foreign bill of exchange can be given only by notice of its protest. 8226. Protest, by whom made. Sec 3226. Protest must be made by a notary public, if with reasonable dili- gence one can be obtained; and if not, then by any reputable person, in the presence of two witnesses. 8227. Protest, how made. Sec. 3227. Protest must be made by an instrument in writing, giving a literal copy of the bill of exchange, with all that is written thereon, or annexing the original; stating the presentment, and the manner in which it was made; the presence or absence of the drawee or acce^Dtor, as the case may be; the refusal to acceptor to pay, or the inability of the drawee to give a binding acceptance; and in case of refusal, the reason assigned, if any; and, finally, protesting against all the parties to be charged. 8228. Protest, where made. Sec 3228. A protest for non-acceptance must be made in the city or town in which the bill is presented for acceptance, and a j)rotest for non-payment in the city or town in which it is jDresented for payment. 8229. Protest, tvhen to be made. Sec. 3229. A protest must be noted on the day of presentment, or on the next business day; but it may be written out at any time thereafter. 8230. Protest, when excused. Sec 3230. The want of a protest of a foreign bill of exchange, or delay in making the same, is excused in like cases with the want or delay of presentment. 8231. Notice of protest, hoio given. Sec 3231. Notice of protest must be given in the same manner as notice of dishonor, except that it may be given by the notary who makes the protest. 8232. Waiver of protest. Sec 3232. If a foreign bill of exchange on its face waives protest, notice of dishonor may be given to any party thereto, in like manner as of an inland bill; 871 8232-8246 CIVIL CODE. except that if an}' indorser of siicli a bill expressl}'' requires j^rotest to be made, b}' a direction written on tlie bill at or before liis indorsement, protest must be made, and notice thereof given to him and to all subsequent indorsers. 8233. Declaration hefore iMijment for honor. Sec. 3233. One who i^ays a foreign bill of exchange for honor must declare, before payment, in the presence of a person authorized to make protest, for whose honor he pays the same, in order to entitle him to reimbursement. 8234. Damages alloived on dishonor of foreign bill. Sec. 3234. Damages are allowed as hereinafter prescribed, as a full compen- sation for interest accrued before notice of dishonor, re-exchange, expenses, and all other damages, in favor of holders for value only, upon bills of exchange drawn or negotiated within this state, and protested for non-acceptance or non- payment. 8235. Bale of damages. Sec. 3235. Damages are allowed under the last section upon bills drawn upon any person : 1. If drawn upon any person in this state, two dollars uj)on each one hundred dollars of the iDrincij^al sum specified in the bill; 2. If drawn upon any person out of this state, but in any of the other states west of the Rocky mountains, five dollars upon each hundred dollars of the jn-incipal sum specified in the bill; 3. If drawn upon any j^erson in any of the United States east of the Rocky mountains, ten dollars upon each hundred dollars of the principal sum sj^ecified in the bill; 4. If drawn upon any j^erson in any place in a foreign country, fifteen dollars upon each hundred dollars of the principal sum specified in the bill. 8236. Interest on amount of ijvotested bill. Sec 3236. From the time of notice of dishonor and demand of payment, lawful interest must be allowed upon the aggregate amount of the principal sum spiecified in the bill, and the damages mentioned in the iDreceding section. 8237. Damages, hoiv estimated. Sec 3237. If the amount of a protested bill of exchange is expressed in money of the United States, damages are estimated uj^on such amount without regard to th'e rate of exchange. 8238. Same. Sec. 3238, If the amount of a protested bill of exchange is exi3ressed in foreign money, damages are estimated upon the value of a similar bill at the time of protest, in the place nearest to the place where the bill was negotiated, and where such bills are currently sold. CHAPTER III. PKOMISSOKY NOTES. 8244. Promissory note, what. Sec. 3244. A promissory note is an instrument, negotiable in form, whereby the signer promises to pay a specified sum of money. 8245. Certain instrximents promissorij notes. Sec. 3245. An instrument in the form of a bill of exchange, but drawn upon and accejDted by the drawer himself, is to be deemed a promissory note, 8246. Jjill of exchange, when converted into a note. Sec 3246, A bill of exchange, if accepted, with the consent of the owner, by a person other than the drawee, or an acceptor for honor, becomes in eftect the promissory note of such person, and all prior parties thereto are exonerated. 872 WAIVER OF RIGHTS. 8247-8268 8247. Certain sections applicahle to notes. Sec. 3247. Chapter I of this title, and sections 3181 and 3214 of this code, apj)ly to promissory notes. 8248. Effect of delay in presentment. Sec. 3248. If a promissory note, payable on demand, or at sight, without interest, is not duly presented for payment within six months from its date, the indorsers thereof are exonerated, unless such presentment is excused. CHAPTER IV. CHECKS. 8254. Chech, what. Sec. 3254. A check is a bill of exchange drawn upon a bank or banker, or a IDcrson described as such upon the face thereof, and payable on demand, with- out interest. 8255. Bules applicahle to checks. Sec'. 3255. A check is subject to all the provisions of this code concerning bills of exchange, except that: 1. The drawer and indorsers are exonerated by delay in presentment, only to the extent of the injury which they suffer thereby; 2. An indorsee, after its apparent maturity, but without actual notice of its dishonor, acquires a title equal to that of an indorsee before such period. CHAPTER V. BONDS, BANK NOTES, AND CEKTIFICATES OF DEPOSIT. 8261. Banh note negotiable after payment. Sec. 3261. A bank note remains negotiable, even after it has been paid by the maker. 8262. [Sec. 3262'''^ was repealed by act approved March 30, 1874; Amendments 1873-4, 265; took effect July 1, 1874.] TITLE XYI. (Snicial |3roubion0. 8268. Parties may waive provisions of code. Sec. 3268. Except where it is otherwise declared, the provisions of the fore- going fifteen titles of this part, in respect to the rights and obligations of parties to contracts, are subordinate to the intention of the parties, when ascer- tained in the manner XDrescribed by the chapter on the interpretation of con- tracts; and the benefit thereof may be waived by any party entitled thereto, unless such waiver would be against public policy. (a) Eepealed section: dishonor •within his knowledge, acquires a title equal Sec. 3262. A transferee of a bond, hank note, or cer- to that of a transferee before such event, tificate of deposit, after its apparent maturity or actual 873 8274r-8281 CIVIL CODE. DIVISION FOURTH. Part I. RELIEF 8274 II. SPECIAL RELATIONS OF DEBTOR AND CREDITOR. . . . 8429 III. NUISANCE 8479 IV. MAXIMS OF JURISPRUDENCE .' 8509 P^A-KT I. RELIEF. Title I. Relief in Genekal 8274 XL Compensatory Relief 8281 III. Specific and Peeventive Relief 8366 BcUtf TITLE I. in (Beneral 8274. Species of relief. Sec. 3274. As a general rule, compensation is the relief or remedy provided by the law of this state for the violation of pi'ivate rights, and the means of securing their observance; and specific and preventive relief may be given in no other cases than those specified in this part of the Civil Code. 8275. Relief in case of forfeiture. Sec. 3275. Whenever by the terms of an obligation, a party thereto incurs a forfeiture, or a loss in the nature of a forfeiture, by reason of his failure to comply with its provisions, he may be relieved therefrom, upon making full compensation to the other party, except in case of a grossly negligent, willful, or fraudulent breach of duty. TITLE 11. Chapter I. Damages in General 8281 II. Measure op Damages 8300 CHAPTER I. DAMAGES IN GENERAL. A.BT1CLE I. CiKNEItAL PRINCIPLES 8281 II. Intkrest as Damages 8287 III. ExEMPLAEic Damages 829-i ARTICLE I. general principles. 8281. Ferson svfferinrj defrinierd may recover damages. Sec. 3281. Every person who sufiers detriment from the unlawful act or 874 DAMAGES. 8281-8300 omission of another, may recover from the person in fault a compensation there- for in money, which is called damages. 8282. Detriment, xvhat. Sec. 3282, Detriment is a loss or harm sufifered in person or property. 8283. Injuries resulting or probable after suit brought. Sec. 3283. Damages maj' be awarded, in a judicial proceeding, for detriment resulting after the commencement thereof, or certain to result in the future. ARTICLE II. INTEREST AS DAMAGES. 8287. Person entitled to recover damages may recover interest thereon. Sec 3287. Every person who is entitled to recover damages certain, or cap- able of being made certain by calculation, and the right to recover which is vested in him upon a particular day, is entitled also to recover interest thereon from that day, except during such time as the debtor is prevented by law, or by the act of the creditor, from paying the debt. 8288. In actions other than contract. Sec 3288. In an action for the breach of an obligation not arising from con- tract, and in every case of opj)ression, fraud, or malice, interest may be given, in the discretion of the jury. 8289. Limit of rate hy contract. Sec 3289. Any legal rate of interest stipulated by a contract remains charge- able after a breach thereof, as before, until the contract is superseded by a verdict or other new obligation. 8290. Acceptance of principal xoaives claim to interest. Sec. 3290. Accepting j)ayment of the whole principal, as such, waives all claim to interest. ARTICLE III. EXEMPLARY DAMAGES. 8294. Exemplary damages, in what cases allowed. Sec 3294. In any action for the breach of an obligation not arising from contract, where the defendant has been guilty of oppression, fraud, or malice, actual or jiresumed, the jury, in addition to the actual damages, may give dam- ages for the sake of example, and by way of punishing the defendant. CHAPTER II. MEASURE OF DAMAGES. Article I. Damages foe Bkeach of Contract 8300 II. Damagks for Wrongs 8333 III. Penal Damages 8314 IV. General Provisions 8353 ARTICLE I. DAMAGES FOR BREACH OF CONTRACT. 8300. Ileasure of damages on breach of contract. Sec 3300. For the breach of an obligation arising from contract, the measure of damages, except where otherwise expressly provided by this code, is the amount which will compensate the party aggrieved for all the detriment prox- imately caused thereby, or which in the ordinary course of things, would be 875 8300-8308 CWIL CODE. likely to result therefrom. [Ajnendment, approved March 30, 1874; Amendments 1873-4, 2G5; took effect Jubj 1, 1874/''> 8301. Damages must be certain. Sec. 3301. No damages can be recovered for a breacli of contract which are not clearly ascertainable in both their nature and origin. 8302. Breach of contract to pay liquidated sum. Sec. 3302. The detriment caused by the breach of an obligation to pay money only, is deemed to be the amount due by the terms of the obligation, Avith interest thereon. 8303. Dishonor of foreign bills of exchange. Sec. 3303. For the dishonor of foreign bills of exchange the damages are prescribed by sections 3235, 3237, and 3238. 8304. Detriment caused by breach of covenant of seizin, etc.; what is. Sec 3304. The detriment caused by the breach of a covenant of " seizin," of "right to convey," of "warranty," or of "quiet enjoyment," in a grant of an estate in real property, is deemed to be : 1. The price paid to the grantor; or, if the breach is partial only, such j)ro- portion of the price as the value of the property affected by the breach bore at the time of the grant to the value of the whole propert}^; 2. Interest thereon for the time during which the grantee derived no benefit from the i:)roperty, not exceeding five years; 3. Any expenses properly incurred b}' the covenantee in defending his i^os- session. 8305. Detriment caused by breach of covenant against incumbrances. Sec 3305. The detriment caused by the breach of a covenant against incum- brances in a grant of an estate in real property is deemed to be the amount which has been actually expended by the covenantee in extinguishing either the principal or interest thereof, not exceeding in the former case a proportion of the i^iice joaid to the grantor equivalent to the relative value at the time of the grant of the property aff'ected by the breach, as compared with the whole, or, in the latter case, interest on a like amount. 8306. Breach of agreement to convey real property . Sec. 3306. The detriment caused by the breach of an agTcement to convey an estate in real j^roperty, is deemed to be the price paid, and the expenses properly incurred in examining the title and prej^aring the necessary papers, with interest thereon; but adding thereto, in case of bad faith, the diff"erence between the price agreed to be paid and the value of the estate agreed to be conveyed, at the time of the breach, and the expenses jDroperly incurred in preparing to enter upon the land. 8307. Breach of agreement to buy real jyroperfy. Sec 3307. The detriment caused by the breach of an agreement to purchase an estate in real property, is deemed to be the excess, if any, of the amount which would have been due to the seller, under the contract, over the value of the property to him. 8308. Breach of agreement to sell p)ersonal property , not paid for. Sec 3308. The detriment caused by the breach of a seller's agreement to deliver personal i:)roperty, the price of Avhich has not been fully paid in advance, is deemed to be the excess, if any, of the value of the projjerty to the buyer, over the amount which would have been due to the seller under the contract, if it had been fulfilled. (a) The original section, after the -wordB " detriment breach, and while it was in his power to perform the proximat'ly caused thereby," proceeded as follows: contract upon his part, would be likely to result from "which the jjarty in fault had notice, at the time of such breach, or which, in the ordinary coui'se of things, entering into the contract, or at any time before the would be likely to result therefrom." 876 DAMAGES. 8309-8317 8309. Breach of agreement to Siell personal property paid for. Sec. 3309. The detriment caused by tbe breach of a seller's agreement to deliver personal property, the price of which has been fully paid to him in advance, is deemed to be the same as in case of ^vrongf^^l conversion. 8310. Breach of agreement to pay for jjersonal property mid. Sec. 3310. The detriment caused by the breach of a buyer's agreement to accept and pay for personal property, the title to which is vested in him, i8 deemed to be the contract price. 8311. Breach of agreement to buy personal property. Sec. 3311. The detriment caused by the breach of a buyer's agi'eement to accept and pay for personal property, the title to which is not vested in him, is deemed to be: 1. If the property has been resold, pursuant to section 3049, the excess, if any, of the amount due from the buyer, under the contract, over the net proceeds of the resale; or, 2. If the property has not been resold in the manner prescribed by section 3049, the excess, if any, of the amount due from the buyer, under the contract, over the value to the seller, together with the excess, if any, of the expenses properly incurred in carrying the property to market, over those which would have been incurred for the carriage thereof, if the buyer had accepted it. 8312. Breach of warranty of title to personal property. Sec. 3312. The detriment caused by the breach of a warranty of the title of personal property sold, is deemed to be the value thereof to the buyer, when he is deprived of its possession, together with any costs which he has become liable to pay in an action brought for the projDerty by the true owner. 8313. Breach of tvarranty of quality of personal property. Sec 3313. The detriment caused by the breach of a warranty of the quality of personal property is deemed to be the excess, if any, of the value which the property would have had at the time to which the warranty referred, if it had been complied with, over its actual value at that time. 8314. Breach of tvarranty of quality for special purpose. Sec 3314. The detriment caused by the breach of a warranty of the fitness of an article of personal property for a particular purpose, is deemed to be that which is defined by the last section, together with a fair compensation for the loss incurred by an effort in good faith to use it for such purpose. 8315. Breach of carrier's obligation to receive goods, etc. Sec 3315. The detriment caused by the breach of a earner's obligation to accept freight, messages, or passengers, is deemed to be the difference between the amount which he had a right to charge for the carriage and the amount which it would be necessary to pay for the same service when it ought to be performed. 8316. Breach of carrier's obligation to deliver. Sec. 3316. The detriment caused by the breach of a carrier's obligation to deliver freight, where he has not converted it to his own use, is deemed to be the value thereof at the place and on the day at which it should have been delivered, deducting the freightage to which he would have been entitled if he had completed the delivery. 8317. Carrier's delay. Sec 3317. The detriment caused by a caiTier's delay in the delivery of freight, is deemed to be the depreciation in the intrinsic value of the freight during the delay, and also the depreciation, if any, in the market value thereof, otherwise 877 8317-8338 CIVIL CODE. than b}"^ reason of a. depreciation in its intrinsic value, at the place where it ought to have been delivered, and between the day at which it ought to have been delivered, and the day of its actual deliveiy. 8318. Breach of xcarranty of authority. Sec. 3318. The detriment caused by the breach of a warranty of an agent's authority, is deemed to be the amount which could have been recovered and collected from his principal if the warranty had been complied with, and the reasonable expenses of legal proceedings taken, in good faith, to enforce the act of the agent against his principal. 8319. Breach of loromise of marriage. Sec. 3319. The damages for the breach of a promise of marriage rest in the sound discretion of the jury. ARTICLE II. DAMAGES FOR WRONGS. • • 8333. Breach of obligation other than contract. Sec 3333. For the breach of an obligation not arising from contract, the measure of damages, except where otherwise expressly provided by this code, is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not. 8334. Wrongful occupation of real projyerty. Sec. 3334. The detriment caused by the wrongful occupation of real prop- erty, in cases not embraced in sections 3335, 3344 and 3345 of this code, or sec- tion 1174 of the Code of Civil Procedure, is deemed to be the value of the use of the property for the time of such occupation, not exceeding five years next preceding the commencement of the action or proceeding to enforce the right to damages, and the costs, if any, of recovering the possession. 8335. Willful holding over. Sec 3335. For willfully holding over real property, by a person who entered upon the same, as guardian or trustee for an infant, or by right of an estate terminable with any life or lives, after the termination of the trust or particular estate, without the consent of the party immediately entitled after .such termi- nation, the measure of damages is the value of the profits received during such ■ holding over. 8336. Conversion, measure of damages. Sec. 333G. The detriment cmisp/l iw +v>o -., rf^i conversion of personal § 3336. Add to first subdivision : " Or where the action he been '/trosccu/cd with reasonable diligence the highest market vah Conversion with the intcr- of the [troperty at aiiy time between the conversion and the verdii ' without interest, at the option of the injured party and.''"' [In ( feet, .laiuiaiy 22, 1871.] .„^„^^ properly expended in pursuit of the property. [Amendment, approved March 30, 1874; Amendments 1873-4, 266; took effect July 1, 1874.^"' 8337. Same. Sec 3337. The presumption declared by the last section cannot be repelled, in favor of one whose possession was wrongful from the beginning, by his sub- sequent application of the property to the benefit of the owner, without his consent. 8338. Damages of lienor. Sec 3338. One having a mere lien on personal property, cannot recover (a) The orijjlnal section difff'rfd from the antcnd-. diligence, the highest mnrket value of the property at ment in the lirst subdiviKion, \vhi 8385. [Sec. 3385 ^"^ was repealed by act approved March 30, 1874; Amend- ments 1873-4, 267; took effect July 1, 1874.] 8386. No remedy unless mutual. Sec. 3386. Neither party to an obligation can be compelled specifically to perform it, unless the other party thereto has performed, or is compellable specifically to perform, everything to which the former is entitled under the same obligation, either completely or nearly so, together with fvtll compen- sation for any want of entire performance. 8387. Distinction between real and personal jiroperty . Sec. 3387. It is to be presumed that the breach of an agreement to transfer real property cannot be adequately relieved by pecuniary compensation, and that the breach of an agreement to transfer personal property can be thus relieved. 8388. Contract signed by one party only, may be enforced by other. Sec. 3388. A party who has signed a written contract may be compelled specifically to perform it, though the other party has not signed it, if the latter has performed, or offers to perform it on his part, and the case is otherwise proper for enforcing specific performance. 8389. Liquidation of damages not a bar to specific performance. Sec. 3389. A contract otherwise proper to be sjDecifically enforced, may be thus enforced, though a penalty is imposed, or the damages are liquidated for its breach, and the party in default is willing to pay the same. 8390. What cannot be specifically enforced. Sec. 3390. The following obligations cannot be specifically enforced: 1. An obligation to render personal service; 2. An obligation to employ another in personal service; 3. An agreement to submit a controversy to arbitration; 4. An agreement to perform an act which the party has not j^ower lawfully to perform when required to do so; 5. An agreement to procure the act or consent of the wife of the contracting party, or of any other third person; or, 6. An agreement, the terms of which are not sufficiently certain to make the precise act which is to be done clearly ascertainable. 8391. Wlial parties cannot be compelled to perform. Sec. 3391. Specific performance cannot be enforced against a party to a con- tract in any of the following cases: 1. If he has not received an adequate consideration for the contract; 2. If it is not, as to him, just and reasonable; 3. If his assent was obtained by the misrepresentations, concealment, cir- cumvention, or unfair practices of any party to whom performance would becouie due under the contract, or by any promise of such partj' which has not been substantially fulfilled; or, 4. If his assent was given under the influence of mistake, misaj)i5rehension, or surprise, except that where the contract provides for comjoensation in case (a) The f)riginal Bection had the following addi- the pjirties to the contract, that ppccitic porforniance tioual words alter " compt-lUd:" " 1. When the act to tlurecjf may be required by either party, or that dam- be done is in the performance, wholly or partly, of an ayes shall not be considered adequate relief." express lru;-t; 2. When the act to be done is such that (h) Uejjealed section: pecuniary coiiipensation for Its uon-iierf'orniance would Skc. Sasr). When either of the parties to an ohliga- not afford adecpiate relief; 3. When it would be ex- tion is entitled to a specific performance thereof, ac- tremelv difficult to ascertain the ac tual damage caused cording to the provisions of the last section, the other by the'non-performance of the act to be done; or, 4. party is also entitled to it, though not within those When it has been expressly agreed, in writing, between provisions." 882 SPECIFIC AND PREVENTIVE RELIEF. 8392-8400 of mistake, a mistake within the scope of such provision may he coinponsated for, and the contract speciticall}^ enforced in otlier respects, if ^jroper to be so enforced. 8392. JVJiat parties cannot have specific performance in their favor. Sec. 3392. Specific performance canuot be enforced in favor of a party who has not fully and fairly performed all the conditions precedent on his part to the obligation of the other party, except Avhere his failure to perform is only partial, and either entirely immaterial, or capable of being fully compensated, in which case specific performance may be compelled, ujjon full compensation being- made for the default. 8393. [Sec. 3393^''> was repealed by act approved March 80, 1874; Amend- ments 1873-4, 267; took efiect July 1, 1874.J 8394. Agreement to sell property by one who has no title. Sec 3394. An agreement for the sale of property cannot be specifically enforced in favor of a seller who cannot give to the buyer a title free from reasonable doubt. 8395. Belief against paiiies claiming under person bound to perform. Sec 3395. Whenever an obligation in respect to real property would ha si^ecifically enforced against a particular person, it may be in like manner enforced against any other person claiming under him by a title created subse- quently to the obligation, except a purchaser or incumbrancer in good faith and for value, and except, also, that any such person may exonerate himself by con- veying all his estate to the person entitled to enforce the obligation. ARTICLE IV. REVISION OF CONTRACTS. 8399. When contract may be revised. Sec 3399. When, through fraud or a mutual mistake of the parties, or a mistake of one party, which the other at the time knew or susp)ected, a written contract does not truly express the intention of the jDarties, it may be revised on the apj)lication of a party aggrieved, so as to express that intention, so far as it can be done without prejudice to rights acquired by third persons, in good faith and for value. 8400. Presumption as to intent of parties. Sec 3400. For the purpose of revising a contract, it must be presumed that all the parties thereto intended to make an equitable and conscientious agree- ment. 8401. Principles of revision. Sec 3401. In revising a written instrument, the court may inquire what the instrument was intended to mean, and what were intended to be its legal con- sequences, and is not confiined to the inquiry what the language of the instru- ment was intended to be. 8402. Enforcement of revised contract. Sec 3402. A contract may be first revised and then specifically enforced. ARTICLE V. RESCISSION OF CONTRACTS. 8408. When rescission may be adjudged. , Sec 3406. The rescission of a written contract may be adjudg:ed, on the application of a party aggrieved : (a) Repealed section: required to iierform than its refusal would operate Seo. 33yti. Specific performance cannot be compelled upon the party seeking it. when it would operate more harshly upon the party 883 8406-8423 CIVIL CODE. 1. In any of the cases mentioned in section 1589; or, 2. Where the contract is unlawful, for causes not apparent upon its face, and the parties were not equally in fault; or, 3. When the public interest will be prejudiced by permitting it to stand. 8407. Bescission for mistake. Sec. 3407. Rescission cannot be adjudged for mere mistake, unless the party against whom it is adjudged can be restored to substantially the same position as if the contract had not been made. 8408. Court may require party rescindivg to do eqxiity. Sec. 3408. On adjudging the rescission of a contract, the court may require the part}' to whom such relief is granted to make any compensation to the other which justice may require. ARTICLE VI. CANCELLATION OF INSTRUMENTS. 8412. When cancellation may he ordered. Sec 3412. A written instrument, in i^espect to which there is a reasonable apprehension that if left outstanding it may cause serious injury to a person against whom it is void or voidable, may, upon his application, be so adjudged, and ordered to be delivered up or canceled. 8413. Instrument obviously void. Sec 3413. An instrument, the invalidity of which is apparent uj)on its face, or upon the face of another instrument which is necessary to the use of the former in evidence, is not to be deemed capable of causing injury, within the provisions of the last section. 8414. Cancellation in part. Sec 3414. Where an instrument is evidence of different rights or obligations, it may be canceled in part, and allowed to stand for the residue. CHAPTER III. PEEYENTIVE RELIEF. 8420. Preventive relief, how granted. Sec 3420. Preventive relief is granted by injunction, provisional or final. 8421. Provisional injunctions. Sec. 3421. Provisional injunctions are regulated by the Code of Civil Pro- cedure. 8422. Injunction, xohen allowed. Sec 3422. Except where otherwise provided by this title, a final injunction may be granted to prevent the breach of an obligation existing in favor of the applicant: 1. Where pecuniar}- compensation would not afford adequate relief; 2. Where it would be extremely difficult to ascertain the amount of compen- sation which would afford adequate relief; 3. Where the restraint is necessary to prevent a multiplicity of judicial pro- ceedings; or, 4. Where the obligation arises from a trust. 8423. Injunction, tchen not alloiced. Sec. 3423. An injunction cannot be granted: 1. To stay a judicial in-oceeding j^ending at the commencement of the action in which the injunction is demanded, unless such restraint is necessary to pre- vent a multiplicity of such i^roceedings; 884 DEBTOR AND CREDITOR. 8423-8433 2. To stay proceeding-s in a court of the Unitetl States; 3. To stay proceedings in another state upon a judgment of a court of that state ; 4. To prevent the execution of a public statute, by oflicers of the hiw, furtlic public benefit; 5. To prevent the breach of a contract, the performance of which wcjuld not be specifically enforced; G. To prevent the exercise of a public or private office, in a lawful manner, by the person in possession ; 7. To j^revent a legislative act by a municipal corporation. \Amriirlineiif, ap- 2yroved March SO, 1874; Amendments 1873-4, 267; took effeclJahj 1, 1874.'*> I^A.IIT II. SPECIAL RELATIONS OF DEBTOR AND CREDITOR. Title I. General Principles 8429 II. Fraudulent Instruments and Transfers 8439 III. Assignments for the Benefit of Creditors 8449 TITLE I. (Bcucral ilrinriplc^. 8429. Whois a debtor. Sfc. 3429. A debtor, within the meaning of this title, is one who, by reason of an existing obligation, is or may become liable to pay money to another, whether such liability is certain or contingent. 8430. Who is a creditor. Sec. 3430. A creditor, within the meaning of this title, is one in whose favor an obligation exists, by reason of w^hich he is, or may become, entitled to the payment of money. 8431. Contracts of debtor are valid. Sec. 3431. In the absence of fraud, every contract of a debtor is valid against all his creditors, existing or subsequent, who have not acquii-ed a lien on the property affected by such contract. 8432. Payments in preference. Sec. 3432. A debtor may pay one creditor in preference to another, or may give to one creditor secui-ity for the payment of his demand in preference to another. 8433. Relative rights of different creditors. Sec. 3433. Where a creditor is entitled to resort to each of several funds for the satisfaction of his claim, and another person has an interest in, or is entitled (a) .The orisinal section had nine subdivisions, the nuisance; exceiit that in an action lor divorce, an in- seventh and eighth of which were like tlie above sixth junction may be granted to prevent interference with and seventh. The sixth and ninth of the original were a wife or child ; as follows: '"J- Where relief, equally efficacious, can bP obtained " 6. To prevent an injury to the iserson, character, or by any other usual mode of proceeding, except in caae personal relations of the applicant, not amounting to a of breach of trust." 885 8433-8449 CIVIL CODE. as a creditor to resort to some, but not all of them, tLe latter may require the former to seek satisfaction from those funds to which the latter has no such claim, so far as it can be done without impairing the right of the former to com- j)lete satisfaction, and without doing injustice to third persons. TITLE II. 8439. Transfer, etc., xcith iiiterd to defraud creditors. Sec. 3439. Every transfer of j)roperty or charge thereon made, every obliga- tion incurred, and every judicial proceeding taken, with intent to delay or defraud any creditor or other person of his demands, is void against all creditors of the debtor, and their successors in interest, and against any person upon whom the estate of the debtor devolves in trust for the benefit of others than the debtor. 8440. Certain transfers presumed fratululent . Sec. 3440. Every transfer of personal property, other than a thing in action, or a shijo or cargo at sea, or in a foreign port, and every lieu thereon, other than a mortgage, when allowed by law, and a contract of bottomry or respondentia, is conclusively presumed, if made by a i^erson having at the time the possession or control of the jDroperty, and not accompanied by an immediate delivery, and followed by an actual and continued change of possession of the things trans- ferred, to be fraudulent, and therefore void, against those who are his creditors while he remains in possession, and the successors in interest of such creditors, and against any persons on whom his estate devolves in trust for the benefit of others than himself, and against purchasers or incumbrancers in good faith subsequent to the transfer. 8441. Creditor's right must be judicially ascertained. Sec 3441. A creditor can avoid the act or obligation of his debtor for fraud only where the fraud obstructs the enforcement, by legal process, of his right to take the property afi'ected by the transfer or obligation. 8442 Question of fraud, how determined. Sec 3442. In all cases arising under section 1227, or tinder the provisions of this title, except as otherwise provided in section 3440, the question of fraud- ulent intent is one of fact, and not of law; nor can any transfer or charge be adjudged fraudulent solely on the ground that it was not made for a valuable consideration. TITLE III. 2V555iGmitcnl!5 for tijc JJciicfJl of (Ticiiitoisi. 8449. When debtor may execute assignment. Sec. 3449. An insolvent debtor may, in good faith, execute an assignment of propei-ty to one or more assignees, in trust for the satisfaction of his creditors, in conformity to the provisions of this chapter; subject, however, to the pro- visions of this code relative to trusts and to fraudulent transfers, and to the restrictions imposed by law upon assignments by sj^ecial partnershij)S, by cor- j)orations, or by other specific classes or persons. 88(J DEBTOR AND CREDITOR. 8450-8458 8450. Insolvency, ivhnt. Sec. 3450. A debtor is insolvent, Avithin the meaning of tliis title, wlion be is unable to pay bis debts from bis own means, as tbey become due. 8451. Certain transfers not affected. Sec, 3451. Tbe provisions of this title do not prevent a person residing in another state or country from making there, in good faith and without intent to evade the laws of this state, a transfer of property situated within it; nor do they affect the po-sver of a person, although insolvent and within this state, to transfer property to a pprticular creditor for the piirpose of paying or securing the whole or part of a debt owing to such creditor, whether in his own light or otherwise. 8452. What debts may be secured. Sec. 3452. An assignment for tbe benefit of creditors may provide for any subsisting liability of the assignor which he might lawfully pay, Avhotlier abso- lute or contingent. 8453. [Secs. 3453, 3454, 3455, and 345G,<''> were repealed by act, approved March 30, 1874; Amendments 1873-4, 2G7; took effect July 1, 1874.] 8457. Assignment, u-hen void. Sec. 3457. An assignment for the benefit of creditors is void against any cred- itor of the assignor not assenting thereto, in the following cases: 1. If it give a preference of one debt or class of debts over another; 2. If it tend to coerce any creditor to release or compromise his demand; 3. If it proAdde for the payment of any claim known to the assignor to be false or fraudulent, or for the payment of more upon any claim than is known to be justly due from the assignor; 4. If it reserve any interest in the assigned property, or in any part thereof, to the assignor, or for his benefit, before all his existing debts are paid; 5. If it confer upon the assignee any power which, if exercised, might prevent or delay the immediate conversion of the assigned iDrojierty to the purposes of the trust; 6. If it exempt him from liabilit}^ for neglect of duty or misconduct. [Amend- ment, approved March 30, 1874; Amendments 1873-4, 2G7; took effect July 1, 1874.^^" 8458. The instrument of assignment. Sec. 3458. An assignment for the benefit of creditors must be in writing, sub- scribed by the assignor, or by his agent thereto authorized by writiiig. It must be acknowledged, or proved and certified, in the mode prescribed by the chax^ter on recording transfers of real property, and recorded as required by sections 3463 and 3464; but recording in one county constitutes a compliance with the following section. (a) Repealed sections: Seo. 3455. No provision in an ssslgnnjent, giving a Sec. 34.')3. Except as otherwise speciaUy provided by preference to a creditor, can affect or impair any rinht statute, an assignment by an insolvent debtor, for the of another creditor to priority of payment, whether benefit of creditors, may give a preference to one or created by law, or arising from an obligation or trans- more creditors or classes of creditors in the following action of the parties. cases, and in no others: 1. Judgments may be -pre- Sec. 345i;. Joiut.or joint and seveinl debtors, can pre- ferred to debts not in judgment; 2. Debts which are fer their joint cr.ditors only out of jdint property: and liens or charges upon the assigned property, or upon can prefer the inaividu:il creditors ol each, only out of some part of it, may be preferred to debts which are the separate property of eac'h. , ,. . . ., not such liens or charges; 3. Debts for money or other (6) The original section had eight subdivisions; the property lent without interest may be preferred for third, fifth, sixth and seventh were like the second. debts for money lent upon interest, or for property fourth, fifth and sixth above. In the first it did net sold- i. Debts due from the assignor bv virtue of a have the word "unlawful," and in the Ion rth. other- trust may be preferred to debts whiih are nottliusdne; wise like the above third, it did n.it have the words and, 5. Debts for personal services performed within " known to be." The second and eighth were as fol- six months next before the assignment may, to an ex- lows: .. , , » tent not exceeding one hundred dollars to any one per- " 'i. If it gives a preference dependent upon any con- son, be preferred to other debts not within any of the dition or contingency, or with any power of revocation preceding classes. reserved; _ ^^ Sec. 34i1. A preference, in an assignment for the "8. If it violates section 34ob of this code. benefit of creditors, can only be given absolutely, and without reserving any power of revocation. 887 8459-8465 CIVIL CODE. 8459. Compliance with provisions of last section necessary to validity of assignment. Sec. 3459. Unless the provisions of the last section are complied with, an assignment for the benefit of creditors is void against every creditor of the assignor not assenting thereto. 8460. Assignee takes, subject to riglits of third j^arties. Sec. 3460. An assignee for the benefit of creditors is not to be regarded as a l^urchaser for value, and has no greater rights than his assignor had, in respect to things in action transferred by the assignment. 8461. Inventory required. Sec. 3461. Within twenty days after an assignment is made for the benefit of creditors, the assignor must make and file, in the manner prescribed by section 3463, a full and true inventory, showing: 1. All the creditors of the assignor; 2. The place of residence of each creditor, if known to the assignor; or if not known, that fact must be stated; 3. The sum owing to each creditor and the nature of each debt or liability, whether arising on written security, account, or otherwise; 4. The true consideration of the liability in each case, and the place where it arose ; 5. Every existing judgment, mortgage, or other security for the payment of any debt or liability of the assignor; 6. All projDcrty of the assignor at the date of the assignment, which is exempt by law from execution; and, 7. All of the assignor's property at the date of the assignment, both real and personal, of every kind, not so exempt, and the incumbrances existing thereon, and all vouchers and securities relating thereto, and the value of such property according to the best knowledge of the assignor. 8462. Verification of inventory. Sec. 3462. An affidavit must be made by every person executing an assign- ment for the benefit of creditors, to be annexed to and filed with the inventor}' mentioned in the last section, to the effect that the same is in all respects just and true, according to the best of such assignor's knowledge and belief. 8463. Recording assignment and filing inventory. Sec. 3463. An assignment for the benefit of creditors must be recorded, and +1..C. Ln-vAntorv required by section 3461 filed with the county recorder of the .iif^l^^r "" ""' " '''' " "' ^"^"^ ""«• tl" ^"^et, :^ assignment; or, if he J the county m which his ACT TO piioTKc'T .srocKiiof DPRQ av,^ „ li^d uot theu a rcsideuce • I '(.KIlOLnKRS AND PKRSON.S DKALUNG WITH , ■. i • i • t ii COlil'OKATIONS IN THIS STATK thC COUllty lU WhlCh thC . . . olhctr of any corporation formed or oxistlno- -f, or transai'tinL' bnsiiiPss In fi,„ „ " litors is executed b}' more the inventory required by lunty in which an}' of the , not then residing in this ^"h a L'rcater vai ... ,1 1' "'"^■' '^'^ '''"^'^ '" «"^'l' ^'or- I's IS void against creditors )rancers m good laith and entory required by section enty days after the dale of DEBTOR AND CREDITOR. 84GG-8i73 8466. Assignment of real property. Sec. 34GG. Where an assignment for tlie benefit of creditors embraces real i:)roi5erty, it is subject to the provisions of Article IV of the chapter on record- ing transfers, as well as to those of this title. 8467. Bond of assignees. Sec. 34G7. Within thirty days after the date of an assignment for the benefit of creditors, the assignee must enter into a bond to the people of this state, in such amount as may be fixed by the county judge of the county in which the original inventory is filed, with sufficient sureties, to be approved by such judge, and conditioned for the faithful discharge of the trust, and the due accounting for all moneys received by the assignee, which bond must be filed in the same office with the original inventory. 8468. Conditions of disiMsal and conversion. Sec. 34G8. Until the inventory and affidavit required by sections 34G1 and 34G2 have been made and filed, and the assignee has given a bond as required by the last section, the assignee for the benefit of creditors has no authority to dispose of the estate or convert it to the purposes of the trust. 8469. Accountings. I Sec. 34G9. After six months from the date of an assignment for the benefit of creditors, the assignee may be required, on the petition of any creditor, to account before the county judge of the county where the accompanying inven- tory was filed, in the manner prescribed by the insolvent laws of this state. 8470. Property exempt. Sec. 3470. Property exempt from execution, and insurance upon the life of the assignor, do not j)ass to the assignee by a general assignment for the benefit of creditors, unless the instrument specially mentions them, and declares an intention that they should pass the"reby. 8471. Compensation. Sec. 3471. In the absence of any provision in the assignment to the contrary, an assignee for the benefit of creditors is entitled to the same commissions as are allowed by law to executors and guardians; but the assignment cannot grant more, and may restrict the commissions to a less amount, or deny them altogether. 8472. Assignees protected for acts done in good fiith. Sec. 3472. An assignee for the benefit of creditors is not to be held liable for his acts, done in good faith, in the execution of the trust, merely for the reason that the assignment is afterwards adjudged void. 8473. Assent of creditor necessary to modification of assignment . Sec. 3473. An assignment for the benefit of creditors, which has been ex- ecuted and recorded so as to transfer the property to the assignee, cannot afterwards be canceled or modified by the parties thereto, without the consent of every creditor affected thereby. 889 8479-8480 CIVIL CODE. I>^RT III. NUISANCE. Title I. General Principles 8479 II. Public NL^SANCES 8490 III. Private Nuisances 8501 TITLE I. 8479. Nuisance, u-hat. Sec. 3479. Anj'tbing ■whieii is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyn^nt of life or propertj^ or unlaAvfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance. [Amendment, approved Ilarch 30, 1874; Amendments 1873-4, 2G8; took effect July 1, 1874. ^^> 8480. Public nuisance. Sec. 3480. A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be un- equal. [Amendment, approved March 30, 1874; Amendments 1873-4, 2G8; took effect July 1, 1874.^''> [The amendatory act of March 30, 1874 (Amendments 1873-4, 181-269), from which most of the foregoing amendments and new sections of the Civil Code are taken, contained three additional sections, relating to its effect, as follows:] Effect of amendatory act of March 30, 1874. Sec. 286. All provisions of law inconsistent with the provisions of this act are hereby repealed, but no rights acc^uired or proceedings taken under the provisions repealed, shall be impaired or in any manner affected by this repeal; and whenever a limitation or period of time is prescribed by such repealed jn'o- visions for acquiring a right or barring a remedy, or for any other purpose, has begun to run before tbis act takes effect, and the same or auy other limitation is prescribed by this act, the time of limitation which shall have run when this act takes effect shall be deemed part of the time prescribed by this act. Effect of amendatory act as to other acts passed at session of 1811-2. Sec 287.. With relation to the laws passed at the present session of the legis- lature, this act must be construed as though it had been passed at the first day of the present session; if the provisions of an}' law passed at the present session of the legislature contravene or are inconsistent with the provisions of this act, the provisions of such law must prevail. (a) Original section: or navigable river, bay, stream, canal, or basiu, or auy 8eo 3479. A niiiHance consists in nnlawfiilly doing public park, square, street, or highway; or, an act, or omitting to perform a duty, which act or 4. In anyway renders other i)ersous insecure in life, omisKion either: or in the use of property. 1. Annoys, injures, or endangers the comfort, re- {h) Origiual section: Iiose, health, or i^afety of others; or. Sec. :i48(). A public nuisance is one whiih afificts 2. Oflfends decency-; or, equally the riglits of an entire commuuity or niii:?hl)or- 3. I'nlawfully interferes with, obstructs, or tends hood, although the extent of the damage may be un- to obstruct, or renders dangerous for jjassage, any lake, equal. 890 NUISANCE. 8480-8501 Sec. 288. This act shall take effect on the first clay of July, one thousand eight hundred and seventy-four. 8481. Private nuisance. Sec. 3481. Every nuisance not included in the definition of the last section is private. 8482. Wiat is not deemed a nuisance. Sec. 3482. Nothing which is done or maintained under the express authority of a statute can be deemed a nuisance. 8483. Successive oivners. Sec. 3483. Eveiy successive owner of property who neglects to abate a con- tinuing nuisance upon, or in the use of, such property, created by a fonner owner, is liable therefor in the same manner as the one who first created it. 8484. Abatement does not jjreclude action. Sec. 3484. The abatement of a nuisance does not prejudice the right of any person to recover damages for its past existence. TITLE II. Public JUiJ*jiancc0. 8490. Lapse of time does not legalize. Sec. 3490. No lapse of time can legalize a public nuisance, amounting to an actual obstruction of public right. 8491. Abatement. Sec. 3491. The remedies against a public nuisance are: 1. Indictment; 2. A civil action; or, 3. Abatement. 8492. Indictment. Sec. 3492. The remedy by indictment is regulated by the Penal Code. 8493. Action. Sec. 3493. A private person may maintain an action for a joublic nuisance, if it is specially injuiious to himself, but not othei-wise. 8494. Abatement, by tvhom. Sec. 3494. A public nuisance may be abated by any public body or officer authorized thereto by law. 8495. Hoiv abated. Sec. 3495. Any person may abate a joublic nuisance which is si:)eciall3- in- jurious to him by removing, or, if necessary-, destroying the thing which con- stitutes the same, without committing a breach of the peace, or doing unneces- saiy injury. TITLE III. JJnuatc lluioancco. 8501. Remedies for private nuisance. Sec. 3501. The remedies against a private nuisance are: 1. A ciA"il action; or, 2. Abatement. 891 8502-8524 CIVIL CODE. 8502. Abatement , ivhen allowed. Skc. 3502. A j^erson injured by a private nuisance may abate it by removing, or, if necessary, destroying the thing which constitutes the nuisance, without committing a breach of the peace, or doing unnecessary injury. 8503. When notice is required. Sec. 3503. Where a private nuisance results from a mere omission of the wrongdoer, and cannot be abated without entering upon his land, I'easonable notice must be given to him before enterino- to abate it. P.AIIT IV. MAXIMS OF JURISPRUDENCE. 8509. Sec. 3509. The maxims of jurisprudence hereinafter set forth are in- tended not to qualify any of the foregoing provisions of this code, but to aid in their just application. 8510. Sec. 3510. "When the reason of a rule ceases, so should the rule itself. 8511. Sec 3511. Where the reason is the same, the rule should be the same. 8512. Sec. 3512. One must not change his purpose to the injuiy of another. 8513. Sec. 3513. Any one may waive the advantage of a law intended solely for his benefit. But a law established for a public reason cannot be con- travened by a private agreement. 8514. Sec 3514. One must so use his own rights as not to infringe upon the rights of another. 8515. Sec 3515. He who consents to an act is not wronged by it. 8516. Sec 3516. Acquiescence in en-or takes away the right of objecting to it. 8517. Sec 3517. No one can take advantage of his own wrong. 8518. Sec 3518. He who has fraudulently dispossessed himself of a thing- may be treated as if he still had possession. 8519. Sec 3519. He who can and does not forbid that which is done on his behalf, is deemed to have bidden it. 8520. Sec 3520. No one should suffer by the act of another. 8521. Sec 3521. He who takes the benefit must bear the burden. 8522. Sec 3522. One who grants a thing is presumed to grant also whatever is essential to its use. 8523. Sec 3523. For every wrong there is a remedy. 8524. Sec 3524. Between those who are equally in the right, or equally in the wrong, the law does not interpose. 892 MAXIMS OF JUKISPRUDENCE. 8525-8543 8525. Sec, 3525. Between rights othci-^N-ise equal, the earhest is preforrod. 8526. Sec. 3526, No man is responsible for that which no man can control. 8527. Sec. 3527, The law he\pH the vigilant, before those who sleep on their rights, 8528. Sec. 3528. The law respects form less than substance. 8529. Sec. 3529. That which ought to have been done is to be regarded as done, in favor of him to whom, and against him from whom, performance is due, 8530. Sec, 3530. That which does not appear to exist is to be regarded as if it did not exist. 8531. Sec 3531. The law never requires impossibilities. 8532. Sec. 3532. The law neither does nor requires idle acts. 8533. Sec, 3533, The law disregards trifles. 8534. Sec, 3534. Particular expressions qualify those which are general. 8535. Sec. 3535, Contemporaneous exposition is in general the best, 8536. Sec. 3536, The greater contains the less, 8537. Sec. 3537. Superfluity does not vitiate. 8538. Sec. 3538. That is certain which can be made certain. 8539. Sec. 3539. Time does not confirm a void act. 8540. Sec 3540. The incident follows the principal, and not the principal the incident. 8541. Sec 3541. An interpretation which gives effect is preferred to one which makes void, 8542. Sec 3542, Inteipretation must be reasonable, 8543. Sec 3543. Where one of two innocent persons must suffer by the act of a third, he, by whose negligence it happened, must be the sufferer. 893 SCHOOL OF LAW LIBRARY UNIVERSITY OF CALIFORNIA' LOr; AKGELES ;i • 'iiilMI l;rj III i.ioNAl UBRARYIACILiry AA (J(J(i!J:M K).'! fi