the court should grant him leave therefor (Kelly v. Kreiss, 68 Cal. 210; Guidery v. Green, 95 Cal. 630.)

2. The finding that the appellant ceased to be qualified to discharge the duties of his office on July 15, 1900, has no support in the facts upon which the cause was submitted. His arrest and confinement on that day upon a charge of felony did not of itself operate as a disqualification, and would not have the effect to create a vacancy in the office until his conviction upon such charge. As he was never tried upon the charge, and consequently never convicted of the felony, and the charge was subsequently dismissed by the court without any hearing thereon, it must be assumed for the purposes of this case that he was innocent of the offense for which he was arrested.

The ground upon which the respondent chiefly relies in support of the judgment is the finding of the court that "the office became vacant and said plaintiff ceased to be such constable on the 15th day of October, 1900, and was not such constable at any time between the 1st day of April, 1901, and the 15th day of August, 1902." It is, however, one of the agreed facts that from the time of the dismissal of the charge against him June 26, 1902, until the 16th day of August, 1902, he performed the duties of constable of that township. His performance of the duties of the office during this period of time, in the absence of any contrary showing, must be assumed to have been by virtue of his right thereto. Whether the duties of the office were performed by anyone in his behalf or at all during the period of his confinement in the county jail is not stated in the agreed facts, and is not found by the court; but it is stated therein that the board of supervisors did not at any time after his original appointment to the office take any action declaring said office vacant, or ousting the plaintiff from said office, and that the plaintiff never resigned his position or voluntarily ceased to perform any of the duties of the office. It may therefore be assumed that there was no other incumbent of the office during the period of his confinement. To the extent, therefore, that the court finds that the appellant was not constable during the period between his discharge June 26, 1902, and August 16, 1902, the finding it not sustained by the agreed statement of facts.

The finding of the court that "the office became vacant and the plaintiff ceased to be such constable on the 15th day of October, 1900" is based upon the provision of section 996 (7) of the Political Code, that an office becomes vacant by the "ceasing of the incumbent to discharge the duties of the office for the period of three consecutive months except when prevented by sickness, or when absent from the state by permission of the legislature"; and it is urged that inasmuch as the appellant was continuously held in confinement at San Jose for a period of more than three consecutive months from the date of his arrest, he of necessity ceased to discharge the duties of his office during that period, and therefore at the expiration of three months from his arrest his office ipso facto became vacant. We are of the opinion, however, that this is not a proper construction to be given to this provision of the section, but that, in order to create a vacancy in the office, the cessation to discharge its duties for the designated period must be

the voluntary act of the incumbent. The section provides for many of the contingencies upon which a vacancy will be created, and it will be noted that with the exception of the death of the incumbent each of these contingencies contemplates some proceeding against him, in which he will have an opportunity to controvert the ground on which the vacancy is claimed, or some act initiated by himself and voluntarily carried into effect. It is in harmony with the other provisions of the section that, in order to create a vacancy in the office, the cessation to discharge its duties for the period of three consecutive months must have been voluntary on his part, and we hold that such construction must be given to the provision. The provision is to be likened to a case of non-user or abandonment of the office which, in the absence of any statutory provision, would be a ground for declaring a forfeiture of the office. The period during which such abandonment or non-user must continue is fixed by the code at three consecutive months, but as the term "abandonment" of itself implies a volition on the part of the incumbent against whom it is charged, such volition is essential to a cessation to discharge its duties before the penalty can be invoked. At common law a wilful refusal to perform the duties of an office was required in order to work a forfeiture (People v. Hartwell, 67 Cal. 11).

The present case does not involve the right of the appellant to the office as was presented in People v. Brite, 55 Cal. 79, or the right of the board of supervisors to appoint another in his place, or of such appointee to discharge its duties, as was the case in People v. Fleming (Shorb), 100 Cal. 537. Where the office appears to be without any incumbent authorized to discharge its duties, the interest of the public in having it filled so that its duties can be discharged authorizes the proper power to appoint someone for that purpose; but, as was said in People v. Fleming, though it may make an appointment in such cases upon any evidence which is satisfactory to it, "the incumbent of the office is not thereby concluded as to the fact of the occurrence of such event. He may always have his day in court before it can be conclusively adjudged against him that the office was vacant at the time the appointment was made. In the present case the board of supervisors did not appoint anyone to discharge the duties of the office, and after the liberation of the defendant he discharged its duties.

The question herein involved is the right of the appellant to the salary which by law is attached to the office, and upon that question the rule is well established in this state that "the right to receive the salary is an incident which attaches itself to the legal title to the office." (Ward v. Marshall, 96 Cal. 155, where many cases are cited in support thereof.)

In Ward v. Marshall the plaintiff was convicted of wilful misconduct in office, and upon his appeal to the supreme court the judgment against him was reversed. Upon his conviction in the superior court the board of supervisors appointed another to the office, by whom its duties were discharged and to whom the salary was paid. It was held that, notwithstanding such appointment and payment, Ward was entitled to the salary accruing during the time that he was suspended from the performance

of the duties of his office by the erroneous judgment of the superior court. If such be the right of an officer while his place is occupied by an appointee, much less can his right to the salary be disputed where no such appointment is made and he, upon returning from his absence, resumes the office and enters upon his functions without any objection. Ward's right to the salary was sustained upon the ground that "he was without fault on his part and against his consent released from the performance of the duties of the office for the period named." The agreed facts herein not only fail to show that there was any fault upon the part of the appellant, or that there was any voluntary cessation on his part in the discharge of the duties of his office, but instead thereof clearly show that he was prevented from their discharge during the period of his confinement by the direct act of those in whose behalf the defendant herein has presented the aforesaid defense, viz: the people of the state. We have no hesitation in declaring that such defense is not available against the claim of the appellant; that his title to the office was not impaired by any conduct on his part, and that he is entitled to the salary affixed thereto by law.

The order is reversed.

We concur:

COOPER, J.

HALL, J.

• HARRISON, P. J.

Civil No. 200. Third Appellate District. July 16, 1906. THE PEOPLE OF THE STATE OF CALIFORNIA, upon the relation of Frank D. Ryan, as the Commissioner of Public Works, etc., Plaintiffs and Respondents, v. MARIA A. PODESTA et al., Defendants and Appellants.

CONDEMNATION OF LAND-JURORS-QUALIFICATION OF. The fact that a juror is a resident, owns property, and is a tax payer in a city for which a condemnation suit is brought to condemn land for a canal to prevent flood waters flooding the city, does not make him such an interested party or person to exclude him on a challenge.

ID.-ACT OF MARCH 25, 1903-CONSTITUTIONALITY OF.-The act of the legislature of March 25, 1903, authorizing the commissioner of public works to obtain a right of way for a canal to divert the waters of Mormon channel into the Calaveras river, etc., does not violate section 34, article IV of the constitution.

ID.-ACT OF MARCH 25, 1903-WHEN DEFENDANT CANNOT QUESTION. -In an action to condemn land for such channel, the defendant cannot question the validity of said statute, where the action was brought under the general power of eminent domain belonging to the state.

ID. DAMAGES-MEASURE OF.-In such a case, on the question of damages, the fact to be ascertained is the value of the land at the time of the taking; and it is not allowed to arrive at this fact by proof of the annual net profits from a particular use. It is not what the land may be worth to the owner by reason of the wonderful crops he may get from it, but it is what the land may bring in the market.

Appeal from the Superior Court of San Joaquin County-W. B. Nutter, Judge.

For Appellants-U. S. Webb, Attorney-General; Nicol & Orr; Ashley & Neumiller.

For Respondents-James H. Budd and Budd & Thompson.

This is a condemnation suit to condemn a portion of the land of defendants for a public purpose, namely, for a canal to carry the water of Mormon channel into the Calaveras river to prevent the flood water of Mormon channel from flooding the city of Stockton. The benefit to be derived from such canal would accrue mostly if not entirely to the property within the city of Stockton.

Defendants had judgment for the damage done to land taken, in the sum of $1254.00, but were allowed nothing for the damage done to the remainder of the tract by reason of its severance from the portions sought to be condemned. Defendants moved for a new trial, which was denied, and on July 15, 1905, an interlocutory judgment was made and entered and a final order and judgment of condemnation was made and entered on August 14, 1905.

The appeal is from the order denying the motion for a new trial, and from both of said judgments.

In the empanelment of the jury one James Darcy was challenged for cause by the defendants and the challenge disallowed. The defendants exercised all of their peremptory challenges, and the said James Darcy was left on the jury, being one of the twelve jurors who tried the case.

His

The juror Darcy lived, and owned property in Stockton. voir dire examination disclosed the facts that his property had never been flooded except a portion of the sidewalk for a few hours; that he had never been on the Podesta place; had never talked with any one about the facts involved in the case; had read of the matter, but not enough to form an opinion in reference to the merits, and did not know of anything to prevent him from giving a fair and impartial trial. On cross-examination, he testified: "I have been in the city of Stockton during a number of periods of high water and have been damaged some myself. I think the canal is almost a necessity. I believe it ought to be built. I know nothing about the particular line that has been located nor the necessity of selecting that line. I have seen nor heard nothing about it. I think it necessary to construct the canal. If the evidence should show it was necessary to take this particular land I would vote for it. I have no opinion with regard to the necessity of turning the waters of Mormon channel into the Calaveras river. I simply favor the proposition of having a canal to turn the waters away from the city of Stockton. I am a tax payer in said city. I would, notwithstanding the fact that I am a resident of the city and own property in it, as between the defendants and the people, act fairly in the matter of damages if that question should arise, to be allowed these defendants for their land and I certainly would be fair as between the people and these defendants with reference to the amount of damages. I have no other than the general opinion that some general relief is necessary to relieve

the city of Stockton of these flood waters, and I don't think I have. any opinion or any feeling that would prevent me from acting fairly between the people and these defendants, and I would be satisfied if I were plaintiff or defendant to have a juror sit in the case who was in the same frame of mind as I am now. I have no opinion as to what the reef should be; some general relief is necessary. I have no opinion as to the particular line involved in this case, and have no opinion that goes to the value of that land. I have no bias or prejudice against the defendants, against the plaintiff or against this condemnation suit and if selected as a juror in this case I would be governed exclusively by the evidence under the instructions of the court in arriving at a verdict."

There is nothing in the examination of the juror to indicate that he is disqualified by reason of implied bias (Sec. 602, Code Civ. Proc.) But counsel claims that because he believes in the necessity of the construction of some canal or means of protecting the property of the city in which he is a tax payer, and that the city is the party beneficially interested; that he is in such a state of mind that he cannot sit as a juror in a case of that kind and impartially and fairly try the same as between those who have property on the outside, and the city itself, and that he is really a party in interest.

cause of

The fact that the juror is a resident in, and owns property in Stockton and is a tax payer therein, could not make him such an interested party or person as to exclude him on a challenge. He is interested, of course, as a citizen of the municipality of the city of Stockton, but, under subdivision 5 of section 02 of the Code of Civil Procedure, such interest alone would not be a challenge. (Meyer v. City of an Diego, 121 Cal. 102.) The suit is one in which his interest would not make him a party, he could not bring the suit nor defend it. His interest in having the canal is the interest of every other inhabitant of the city of Stockton. He had knowledge of the damage of flood and his opinion went only to the fact that there should be some general relief, but as to just what that should be he did not know. We do not think the juror was shown to be disqualified at all.

The challenge was properly denied. M. G. Parker and Phillips were both challenged by defendants on the same grounds as those on which Darcy was challenged. The court denied the challenge and the defendants afterwards challenged both peremptorily.

The 57th Congress of the United States (vol. 32, part 1, U. S. Statutes at Large, pp. 331, 368) appropriated a large sum of money to be used "for the construction, completion and preservation of the following public works, to wit: The rectification of the Stockton and Mormon channels at and near the city of Stockton, California, by the construction of a canal to divert the waters of the Mormon channel into Calaveras river, etc." One of the provisions in said appropriation was as follows: "That the City of Stockton or the State of California shall furnish to the United States the right of way for said canal." Congress also made other appropriations for carrying on this work. The right of way which has been located is 400 feet wide, commencing at a point at Mormon channel