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upon its work cannot be permitted to give it a meaning not fairly contemplated within its terms.' In other words, a legislative declaration, whether contained in the title or in the body of a statute, that the statute was intended to promote a certain purpose is not conclusive on the courts, and they may and must inquire into the real, as distinguished from the ostensible, purpose of the statute, and determine the fact whether, after all has been said and done by the legislature, the statute, in its scope and effect, departs from the declared legislative design and contravenes the fundamental and supreme law of the state. (Matter of Jacobs, 98 N. Y. 98, 110 [50 Am. Rep. 636]; State v. Redmon, 134 Wis. 89, 107 [126 Am. St. Rep. 1003, 15 Ann. Cas. 408, 14 L. R. A. (N. S.) 229, 114 N. W. 137]; Mugler v. Kansas, 123 U. S. 623 [31 L. Ed. 205, 8 Sup. Ct. Rep. 273, see, also, Rose's U. S. Notes].) . . ." The court then said: "Its definition and application depend not upon what the particular office in question may be called, nor upon what a statute may call it, but upon the power granted and wielded, the duties and functions performed and other circumstances which manifest the true character of the position and make and mark it a public office, irrespective of its formal designation. (Knox v. Los Angeles County, 58 Cal. 59; Mechem on Public Offices, sec. 4; Hartigan v. Board, 49 W. Va. 14 [38 S. E. 698].) . . ." In determining whether or not the county engineer was a public officer, one of the rules of the determination of that question is thus stated in Coulter v. Pool, supra: "A public officer is a public agent and as such acts only on behalf of his principal, the public, whose sanction is generally considered as necessary to give the act performed by the officer the authority and power of a public act or law. The most general characteristic of a public officer, which distinguishes him from a mere employee, is that a public duty is delegated and entrusted to him, as agent, the performance of which is an exercise of a part of the governmental functions of the particular political unit for which he, as agent, is acting. . . .

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As. we said in Ex parte Daniels, 183 Cal. 636, 639 [21 A. L. R. 1172, 192 Pac. 442, 444]: "The streets of a city belong to the people of the state, and every citizen of the state has a right to the use thereof, subject to legislative control. (People v. County of Marin, 103 Cal. 223, 232

[26 L. R. A. 659, 37 Pac. 203]; Elliott on Roads and Streets, 3d ed., secs. 25, 505, 543, 544, 1112, 1115; 3 Dillon on Municipal Corporations, 5th ed., see. 1122.) The right of control over street traffic is an exercise of a part of the sovereign power of the state. (Elliott on Roads and Streets, sections cited, supra.)

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[1] It clearly follows that as the duty of the petitioner herein was to regulate traffic upon the public streets of the county of San Mateo, he was to that extent exercising a part of the sovereign power of the state and for that reason was a public officer as distinguished from a mere employee, such as a street-sweeper or laborers upon the high

way.

[2] It is clear, then, that the supervisors had no authority to pay or authorize the payment of the petitioner's salary and for that reason the petition must be denied. It is unnecessary to determine whether or not the petitioner was acting as a peace officer and thus performing the duties of a constable or sheriff and for that reason his employment was unauthorized because it would be of assistance to the sheriff or constable and thus an increase of compensation to such sheriff or constable. We express no opinion upon that point, basing our judgment upon the proposition that the petitioner was an officer and that the supervisors were without power to create such office.

Petition denied.

Lennon, J., Kerrigan, J., Myers, J., Lawlor, J., Seawell, J., and Waste, J., concurred.

[S. F. No. 10175. In Bank.-March 23, 1923.]

W. H. BLODGETT COMPANY, Appellant, v. BEBE COMPANY, etc., et al., Respondents.

[1] ARBITRATION-FUTURE DISPUTES-INVALID AGREEMENT.-An agreement between parties to a contract to arbitrate all disputes thereafter to arise thereunder is invalid and unenforceable, as it

1. Arbitration agreements, their validity and binding force, note, 47 L. R. A. (N. S.) 337.

constitutes an attempt to oust the legally constituted courts of their jurisdiction and to set up private tribunals; but if the matter to be submitted to the arbitrators is the finding of a fact or facts the determination of which is essential to the accrual of the cause of action itself, such arbitration or finding becomes a condition precedent to the right to sue, and is, therefore, not within the general rule.

[2] ID. INVALID PROVISION OF CONTRACT – RIGHT OF ACTION NONSUIT. A provision in a contract requiring all disputes thereafter arising under it to be submitted to arbitration being invalid, a party suing upon the contract is not called upon to prove that he submitted his claim to the method of arbitration provided in the contract, and it is error for the trial court to grant a nonsuit based upon plaintiff's noncompliance with such provision.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco. Daniel C. Deasy, Judge. Reversed.

The facts are stated in the opinion of the court.

Willard P. Smith for Appellant.

Edward C. Harrison and Maurice E. Harrison for Respondents.

KERRIGAN, J.-The plaintiff brought this action to recover damages from the defendants for breach of contract, which was one for the sale and purchase of personal property. At the conclusion of the plaintiff's evidence the defendants moved for a nonsuit upon the ground that the contract relied upon by the plaintiff provided that should any dispute arise thereunder it should be submitted to arbitration, and that the plaintiff's evidence failed to show that such arbitration had been had or that plaintiff had offered to arbitrate. The trial court granted the motion upon that ground and the plaintiff appeals from the judg inent entered thereon.

The question involved upon the appeal is whether the plaintiff was bound by its agreement for arbitration.

The provision of the contract concerning this question, so far as pertinent here, is in the following language: "any dispute arising under this contract shall be immediately submitted to arbitration . . . the decision shall be final and binding on both parties. . . Each party hereby

agrees that in the event of his failure to comply with the award of the arbitrators within ten (10) days of date of such award, an action in court shall lie against him based upon such award." The arbitration clause also designated the arbitrators, the place where the proceeding should be held, and a method of procedure, but it is not necessary here to refer to those matters in detail.

[1] It was early settled in the jurisprudence of this state, in conformity with that of practically all the states, that an agreement between parties to a contract to arbitrate all disputes thereafter to arise thereunder is invalid and unenforceable, as constituting an attempt to oust the legally constituted courts of their jurisdiction and to set up private tribunals; but that if the matter to be submitted to the arbitrators was the mere finding of a fact or facts the determination of which is essential to the accrual of the cause of action itself, such arbitration or finding becomes a condition precedent to the right to sue, and is, therefore, not within the general rule. Judges and commentators have ascribed the origin of the rule to the jealousy of courts in the matter of their power and jurisdiction and have been somewhat inclined to criticize it on that ground. Another and better ground assigned for it is that citizens ought not to be permitted or encouraged to deprive themselves of the protection of the courts by referring to the arbitrament of private persons or tribunals, in no way qualified by training. or experience to pass upon them, questions affecting their legal rights. Whatever may be the true origin of the rule it is very generally established, and there can be no doubt that it prevails in California.

The question early arose and was considered at length in the case of Holmes v. Richet, 56 Cal. 307 [38 Am. Rep. 54], where the general rule was recognized, although the facts of that case brought it within the exception above noted. That action was based upon a claim for extra work under a building contract, which provided that should any dispute arise as to the amount to be paid for extra work it should be referred to two competent persons, and if they could not agree the services of an umpire were to be invoked. It was contended that this was a general agreement for arbitration, and, therefore, not enforceable. In the opinion the court said: "Was it competent for the parties to make

such a stipulation? It has been frequently decided, and now seems to be the settled law, that an agreement to refer a case to arbitration will not be regarded by the courts, and they will take jurisdiction and determine a dispute between parties, notwithstanding such an agreement. But that is not this case. Here the parties simply agreed that the

amount or value of certain extra work should be fixed in a certain manner, and was there any right of action in this case for and on account of said extra work until the value thereof was fixed according to the terms and conditions of the contract? In other words, was it not a condition precedent to any right of action, that the value of the extra work should be determined in the mode provided by the contract? This question was very elaborately considered by the court of appeals of New York, in the recent case of President, etc., v. Pennsylvania Coal Co., 50 N. Y. 250. The court there says: "The distinction between the two classes of cases is marked and well defined. In one class the parties undertake by an independent covenant or agreement to provide for an adjustment and settlement of all disputes and differences by arbitration, to the exclusion of the courts: and in the other they merely, by the same agreement which creates the liability and gives the right, qualify the right, by providing that before a right of action shall accrue, certain facts shall be determined, or amounts and values ascertained; and this is made a condition precedent, either in terms or by necessary implication. This condition being lawful, the courts have never hesitated to give full effect to it. . . 'When, as here, the agreement is, that the covenantor shall pay such sum, and only such sum, as shall be determined by arbitrators, the procuring an award is as clearly a condition precedent to an action as if the parties had added, "and no action shall be maintainable until after the award of the arbitrators."'"'

The rule thus announced has been uniformly followed in this state. (See Loup v. California S. R. R. Co., 63 Cal. 97, 101; Old Saucelito L. & D. D. Co. v. Commercial Union Assur. Co., 66 Cal. 253 [5 Pac. 232]; Adams v. South British etc. Ins. Cos., 70 Cal. 198 [11 Pac. 627]; Farnum v. Phoenix Ins. Co., 83 Cal. 246 [23 Pac. 869]; California Annual Conference of the M. E. Church v. Seitz, 74 Cal. 287 [15 Pac. 839]; Davisson v. East Whittier Land etc. Co., 153.

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