year after the judgment was rendered does not come within the statute.

[Ed. Note. For cases in point, see Cent. Dig. vol. 30, Judgment, §§ 363-366.]

3. SAME EXCUSE FOR FAILURE TO INTERPOSE DEFENSE-IGNORANCE OF FACTS.

Plaintiff began an action against defendant, and served upon it a copy of the complaint, showing that plaintiff claimed the right to the flow in a water course, which comprehended the right to have the flow continue, and was a servitude upon the land of defendant and an interest affecting its real property. An issue in relation thereto was tendered, and the claim was one of the matters examined and determined in the action. Held, that the judgment cannot be set aside on the ground that plaintiff's claim was fraudulent, since this was an issue tendered by the complaint, and not extrinsic or collateral to the questions examined and determined in the action.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 30, Judgment, § 785.]

4. SAME-NEGLIGENCE OF COUNSEL.

A judgment rendered against defendant because it failed to appear and defend in the action cannot be set aside, on the ground that it acted on the advice of counsel, where there was no mistake of fact upon its part, and the selection of the counsel was not induced by any act of plaintiff.

[Ed. Note. For cases in point, see Cent. Dig. vol. 30, Judgment, §§ 821–827.]

5. SAME-COLLATERAL ATTACK.

Where a judgment rendered against plaintiff in a former action appears to be one ordered in accordance with the prayer of the complaint, presumably upon competent evidence, in a proceeding to set aside the judgment, plaintiff cannot question the sufficiency of the evidence to warrant the judgment.

[Ed. Note. For cases in point, see Cent. Dig. vol. 30, Judgment, § 948.]

Appeal from Superior Court, Los Angeles County; Curtis D. Wilbur, Judge.

Action by the Amestoy Estate Company against the City of Los Angeles. From a judgment sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.

R. M. Widney, for appellants. W. B. Mathews, H. T. Lee, and J. R. Scott, for respondent.

ALLEN, P. J. Action to vacate a judgment of the superior court and to enjoin defendant from asserting rights thereunder. The complaint alleges ownership by plaintiff of a large ranch in Los Angeles county, traversed by the Los Angeles river, a nonnavigable stream; that said lands are riparian to said stream, and the waters thereof are necessary for the irrigation of said lands, and have been so used for more than 50 years; that heretofore, in April, 1903, while plaintiff was so seised, the defendant commenced an action against plaintiff in the superior court of Los Angeles county to determine conflicting interests as to such water and its use. That service of summons was duly made upon plaintiff in June following; that after said service plaintiff correctly and fully stated all the facts involved in said litigation to its attorney, who advised it that it could not successfully defend against said action, and against further expense or litigation in refer

ence thereto; that plaintiff, acting upon such advice, permitted its default to be entered, and on September 11, 1903, judgment was ordered by the court in accordance with the prayer of the complaint and duly entered, by which it was adjudged that the city was the owner in fee of the paramount right to the use of all of the water of said river so far as may be reasonably necessary from time to time to give an ample supply of water for the use of its inhabitants, and for all municipal and public uses; and that the rights of the plaintiff herein were subordinate to the rights of said city. It is alleged that this judgment was ordered upon an unverified complaint, and no evidence was offered additional in its support. Plaintiff in the complaint under consideration alleges, further, that the claim of right asserted by said city in its complaint was unfounded; that the said city possessed no rights to said water, and it well knew such fact and falsely stated that it had title thereto, well knowing that plaintiff herein was the owner of said lands and the riparian rights incident thereto; that plaintiff herein did not discover the mistake and error of its attorney for more than a year after the entry of the judgment aforesaid, nor until January, 1905; that, had plaintiff known of the error and mistake of its counsel, it would have appeared and defended said action and by its answer presented a good and complete defense upon the merits. The complaint further alleges that the riparian rights of the plaintiff are of large value, and without which the value of its lands is destroyed. A general demurrer of the city to the complaint was sustained by the court, and, the plaintiff not desiring to further amend, judgment was entered dismissing the plaintiff's action. From this judgment plaintiff appeals.

The judgment of dismissal, not being for one of the causes provided in section 581, Code Civ. Proc., must be held a judgment upon the merits under section 582; and this appeal therefore involves the action of the court in sustaining the demurrer of the defendant to the complaint. The facts admitted by the demurrer would entitle plaintiff to relief under section 473, Code Civ. Proc., had applica tion been made to the court within a reasonable time, not exceeding six months. Parsons v. Weis, 144 Cal. 410, 77 Pac. 1007; Douglass v. Todd, 96 Cal. 657, 31 Pac. 623, 31 Am. St. Rep. 247. "When the time within which a motion may be made has expired, and no laches or want of diligence is imputable to the party asking relief, there is nothing in reason or propriety preventing the interference of equity." Brackett v. Banegas, 116 Cal. 285, 48 Pac. 90, 58 Am. St. Rep. 164. But there is a marked distinction between the powers of the court in the first instance, wherein discretion is given to the court to relieve a party from a mistake, fraud, or from excusable neglect, under section 473, Code Civ. Proc., and those powers exercised by a court

of equity after the lapse of such time when proceedings are instituted by an original bill to vacate the judgment of another court. That a former judgment may be set aside by a court of equity on the ground of fraud, it must be fraud extrinsic or collateral to the questions examined and determined in the action. United States v. Throckmorton, 98 U. S. 61, 25 L. Ed. 93; Pico v. Cohn, 91 Cal. 129, 25 Pac. 970, 27 Pac. 537, 13 L. R. A. 336, 25 Am. St. Rep. 159; Langdon v. Blackburn, 109 Cal. 26, 41 Pac. 814; Hanley v. Hanley, 114 Cal. 692, 46 Pac. 736.

When the city instituted its original action against plaintiff and served upon it a copy of the complaint, plaintiff had notice of the pendency of the action, was by the service required to appear and answer, and by the Code required to set up any claim of right which it possessed to the property described in the complaint. There is no suggestion in the complaint that plaintiff was prevented by any act of the defendant from appearing and making a proper defense. Conceding the false and fraudulent character of the city's claim, an issue in relation thereto was tendered by the complaint, and such claim was one of the questions examined and determined in the action. Such claim was in no sense collateral. The judgment is conclusive, unless it is shown that the jurisdiction of the court has been imposed upon, or that the prevailing party, by some extrinsic or collateral fraud, has prevented a fair submission of the controversy. Fealey v. Fealy, 104 Cal. 360, 38 Pac. 49, 43 Am. St. Rep. 111. There was no concealment or imposition upon the court. The claim asserted by the city may have been one which the plaintiff herein could have successfully resisted; but it was nevertheless a claim, and under section 738, Code Civ. Proc., an action may be brought by any person against another who claims an interest in real property adverse to him. The claim of the city was to the flow in a water course. This comprehends the right to have such flow continue in such water course over the lands affected, and such right claimed was a servitude upon the land of the plaintiff herein, and, to the extent of the easement, an interest claimed by the city affecting real property described in the complaint. Standart v. Round Valley Water Co., 77 Cal. 399, 19 Pac. 689.

The selection of the attorney upon whose advice plaintiff acted was not induced by any act of the city. It is apparent from plaintiff's complaint that there was no mistake of fact upon its part. It knew of the claim of the city to the water in the river, knew it was a nonnavigable stream, and knew that it owned the land over which the water course extended and the incidental riparian rights appurtenant to such land. Its only mistake, if any, was in accepting the opinion of its attorney that, as a matter of law, the claim of right upon the part of the city was superior to that of the plaintiff as a riparian

owner. "It is undoubtedly the true rule that neither the ignorance, the blunders, nor the misapprehension of counsel, not occasioned by the adverse party, is any ground for vacating a judgment or decree." Freeman on Judgments, § 508; Black on Judgments, § 375. The facts involved in Bacon v. Bacon, 89 Pac. 317, were such as justified the conclusion that the plaintiff did not know of her own rights, which clearly distinguishes that case from the one under consideration.

A different rule obtains when the proceedings are under section 473, Code Civ. Proc. That section is broad enough to justify the action of the court in relieving a party from a mistake of law upon the part of his attorney when from reliance thereon he was prevented from making a defense. Douglass v. Todd, supra. The broad provisions of that section are available, however, only to those seeking relief thereunder. It cannot be construed as an attempt to broaden the powers of a court of equity in determining its jurisdiction in an independent proceeding. The reason for applying different rules is obvious. In the one case, the motion is directed to the discretion of a trial court within a limited time and before the judgment has become final; in the other, it is the exercise of equitable powers by an independent court based upon established rules. The restricted power of equity is founded upon the proposition that the verity of a judgment should under all circumstances be maintained when the attack is only upon those matters considered by the court upon the original hearing, without which rule there would be no end to litigation, and no permanent rights could be established by judgments and, decrees.

It is alleged in the complaint, although not urged in the briefs, that the judgment was by default and on its face void as unauthorized by section 751 of the Code of Civil Procedure. Were it conceded that section 751 applies to cases other than those where unknown owners are defendants, an inspection of the judgment incorporated in the complaint develops that it was not by default, but was a judgment ordered in accordance with the prayer of the complaint, presumably upon competent evidence. In this proceeding the plaintiff cannot be heard to question the sufficiency of the evidence, presumably before the court, which was by it determined to warrant the judgment.

We find no error in the record, and the judgment is affirmed.

We concur: SHAW, J.; TAGGART, J.

(5 Cal. A. 265) GOOD V. COMMON COUNCIL OF CITY OF SAN DIEGO et al. (Civ. 306.) (Court of Appeal, Second District, California. March 26, 1907.)

1. MUNICIPAL CORPORATIONS OFFICERS-REMOVAL.

By chapter 4, § 4, amending article 1, of the charter of San Diego, as approved by reso

lution of the Legislature February 3, 1905, 25 per cent. of the electors may by petition express their disapproval of the action of any municipal officer whose successor would be elected by such electors, and demand that he be sustained by a vote of confidence or retire, and the charter provides that the petition must contain a statement of the grounds on which removal is sought. A petition stated that the councilman supported a certain ordinance regulating_the_licensing and sale of liquors in the city of San Diego; that he voted to disregard a former petition for his re call; that he repeatedly voted to disregard petitions to refer to the vote of the people ordinances passed by the council filed in conformity to the provisions of the charter; and that he voted for a false certification of an ordinance to prevent a referendum. Held, that the petition was sufficient.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 36, Municipal Corporations, § 354.] 2. SAME-MODE OF REMOVAL-PETITION-SUFFICIENCY.

A certificate of the clerk of the city that he had compared the names on the petition with the great register, and found the petition sufficient, was a sufficient compliance with the statute requiring the certificate to show the "result" of the clerk's examination.

3. MANDAMUS-PARTIES.

One of the petitioners may maintain an action for mandamus to compel the calling of an election.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 33. Mandamus, § 151.]

4 MUNICIPAL CORPORATIONS-OFFICERS-REMOVAL.

Where a petition bears the proper number of names of electors as shown by the clerks' certificate, no discretion remains with the council, but it is its duty to call an election.

Appeal from Superior Court, San Diego County; D. K. Trask, Judge.

Mandamus by Charles L. Good to compel the common council of the city of San Diego to order an election for the recall of J. N. Reynolds as member of such council. From a judgment awarding the writ, defendants appeal. Affirmed.

Eugene Daney and E. Swift Torrance, for appellants. Luce, Sloane & Luce, for respondent. Anderson & Anderson, amici curiæ.

TAGGART, J. This is an appeal from an order and judgment of the superior court directing a writ of mandate to issue commanding the defendants to order an election for the recall and removal of Jay N. Reynolds, one of the defendants, from the office of councilman of the city of San Diego, to fix date for such election, and to make, or cause to be made, all necessary arrangements for the holding of such election.

Plaintiff was one of 105 signers of a petltion presented to the common council of the city of San Diego demanding that an election be called for the removal of said defendant Jay N. Reynolds from the office of member of the common council of the city of San Diego for the Seventh Ward, and the election of his successor, under and by virtue of the provisions of section 4 of chapter 4, adopted as an amendment to article 1 of the charter of that city by vote of the electors thereof on January 7, 1905, which amendment was

approved by resolution of the Legislature of the state on February 3, 1905. Statutes and Amendments to Codes Cal. pp. 901-922. The petition was signed and verified by one of the signers, as required by the charter, regularly filed with the city clerk, who within 10 days thereafter submitted to the common council at its regular meeting said petition, accompanied by the certificate of said clerk in the words and figures following, to wit: "San Diego, Cal., March 30, 1906. To the Honorable Common Council of the City of San Diego, California: This is to certify that the foregoing petition of the electors of the Seventh Ward of the City of San Diego, California, for the recall of Councilman Jay N. Reynolds, has been examined by me, and the names on the said petition compared with the Great Register of the County of San Diego, State of California, for the year 1905, and I find said petition to be sufficient. J. F. Butler, City Clerk. [Seal.]" The common council refused to act upon the petition, but "voted to disregard said petition and to table and file the same without action." Plaintiff brings this action as a resident and elector of the Seventh Ward, a qualified signer of said petition, and a property owner and taxpayer in said city, and sets forth the petition for recall in full in his "Affidavit and Petition" in the proceeding before the superior court. Defendant moved to quash the alternative writ issued ex parte, and demurred to plaintiff's affidavit and petition upon which the writ issued. The motion was denied and the demurrer overruled, and, defendants declining to answer, judgment was entered in favor of plaintiff, making the alternative writ peremptory.

These rulings of the court were excepted to, and are assigned as error because (1) the affidavit and petition does not show the petitioner to be a party beneficially interested in the issuance of the writ; (2) the petition for recall does not state grounds sufficient in law; (3) the clerk's certificate attached to the recall petition does not comply with the charter provision by "showing the result of said examination" of the great register; (4) the determination of the sufficiency of the recall petition rests in the discretion of the common council, and cannot be controlled by the mandate of the courts; and (5) the time within which the election should have been held under the provisions of the charter having already expired, no election could be called by the said common council, and the court had no jurisdiction to order an election at a later date. The fixing of the tenure of office of the officers of a municipality subject to removal by the body that elected them is comparatively new in our system of government, and the interpretative branch of the law is in rather an undeveloped state on the subject. A responsible government, however, is the very foundation of the republican system, and there appears no reason why a representative should not be made to retire

at any time at the request of the people, as well as at the end of a fixed period. This is not deemed incompatible with a republican form of government in France and several of the South American states. It is similar in principle and application to the custom or rule which makes the ministry or real government of Great Britain answerable at all times for its failure to meet the approval of the electorate of that country on some measure or question of policy. It was evidently the purpose of the framers of the section of the San Diego charter under which the petition in this case was filed to ingraft this principle upon the charter of that city. In the operation of this charter the question is not whether there was cause for the removal of the councilman from office as the word "cause" has heretofore been used in this connection. The fitness of the incumbent, or the propriety or impropriety of his conduct, is not alone. involved. Malfeasance, misfeasance, or nonfeasance in office may call for the exercise of the right conferred by this section, but it includes more than these. The charter provides for an answerable or responsible tenure in all elective offices, and "the holder of any elective office may be removed at any time by the electors qualified to vote for a successor of such incumbent." By virtue of this provision every elective officer elected after the adoption of the amendment holds office subject to the condition subsequent that 25 per cent. of the electorate of the district from which he was elected may by petition express their disapproval of his action upon some measure or as to some policy, and demand that he be sustained by a vote of confidence or retire. A clear conception of the purpose of this proceeding as distinguished from an ordinary "removal for cause" is necessary in the consideration of the questions here presented. The power to remove a corporate officer from office, for reasonable and just cause, is one of the common-law incidents of all corporations, and this extends to elective as well as appointive officers (Richards v. Clarksburg, 30 W. Va. 491, 4 S. E. 774; Dillon on Municipal Corporations, §§ 242, 243); and it is competent for the charter of a city to so provide (Croly v. Sacramento, 119 Cal. 234, 51 Pac. 323). In such cases the "just cause" is to be construed as something more than the mere wish of that part of the sovereign people which elected the officer whom it is attempting to remove.

A case of "removal for just cause" in this sense implies some misconduct upon the part of the officer, or imputes to him some violation of the law. Under such circumstances it is necessary that the charges against him shall be based upon some refusal to obey or intention to violate the law prescribing his duties. There are often such penalties attached to proceedings for the removal of officers "for cause shown" that they are and should be carefully guarded

from abuse (Croly v. Sacramento, 119 Cal. 23 234, 51 Pac. 323); but, as to the right to the office as against the people, it is a wellrecognized rule that the agency may be terminated at any time by the sovereign power without reason given (Matter of Carter, 141 Cal. 319, 74 Pac. 997). Offices are created by the people for administration of public affairs, and not for the benefit of the officeholder, and revocable at the pleasure of the authority creating them, unless such authority is limited by the power which conferred it. Atty. Gen. v. Jochim, 99 Mich. 358, 58 N. W. 614, 23 L. R. A. 699, 41 Am. St. Rep. 606. There is no doubt that the provision here under consideration, and similar ones in other city charters, are intended to check a growing forgetfulness on the part of officeholders of the principle that the duties of their offices are to be discharged in the interest of the public, and not their own. In the consideration of a freeholder's charter the intention of the people in its adoption is to be considered as a rule of construction. Provisions for the summary removal of appointive officers for cause shown are made by the charter. The general law and the common-law power of a motion, as well as the provisions of the charter, provide for removals of this kind. The purpose of sectlon 4, however, is the reservation, by the people, of the right to remove any elective officer of the city whenever a majority of the electors shall so determine.

The reason why the removal is asked in this case, and the grounds upon which the petition for recall rests, are that the councilman whom it is sought to remove voted for and supported a certain ordinance regulating the licensing and sale of liquors in the city of San Diego, that he voted to diregard a former petition for his recall; that he repeatedly voted to disregard petitions to refer to the vote of the people ordinances passed by the council of said city filed in conformity to the provisions of the charter; and that he voted for a false certification of an ordinance to prevent a referendum. The only reference in the recall petition to the wishes or desires of the councilman's constituents in regard to the matters mentioned, and the only allegation in relation thereto in the "Affidavit and Petition" for the writ of mandate, is found in the following language in the recall petition: "That the official conduct and action of said Jay N. Reynolds ever since he entered upon the duties of said office has been in opposition to the will and preferences of his constituents, and obstructive to the best interests of the city of San Diego." If there be enough of substance in the grounds as stated, the proceeding should not be held to have failed because of lack of detailed and specific statement. The charter provides for a general statement only of the grounds on which the removal is sought, and we think the petition sufficient to cover

This Find

this provision and to Indicate to the officer whose removal is sought why his successor is asked to be elected. The certificate of the city clerk is that he had compared the names on the petition with the great register and found the petition to be sufficient. was the "result of his examination." ings that there were 393 votes cast at the last election, and that the 105 names on the petition were on the great register, could have added nothing to this. That it was sufficient, implied "that it fulfilled the requirements of the law." There was nothing to be done by the common council in this connection if the petition had not been sufficient, as the law provided that, if the petltion be found insufficient by the clerk, he should return it to the petitioners. In Davenport v. Los Angeles, 146 Cal. 508, 80 Pac. 684, in a similar proceeding, the certificate of the clerk was held to be insufficient because it was ambiguous and on its face showed that the city clerk had not complied with the charter provision contained in the charter of the city of Los Angeles. This provision is the same as that in the San Diego charter. Section 198c, Amendments, Los Angeles Charter; Statutes and Amendments to Codes Cal. 1903, p. 574. By these charter provisions the right to petition for the removal of a public officer is vested in "the electors entitled to vote for a successor to the incumbent sought to be removed." This being the foundation of the right, those who are entitled to demand that the common council call the election can certainly maintain the action to protect the right granted. There is but one question, then, as to how the action must be brought. Must all the petitioners join, must one sue on behalf of himself and others, or may one sue alone? We think the authorities sustain the right of one or more of the petitioners to maintain the proceeding for a writ of mandate. Windsor v. Polk Co., 87 N. W. 705, 115 Iowa, 738; Kimberly v. Morris, 87 Tex. 637, 31 S. W. 808; Frederick v. San Luis Obispo, 118 Cal. 391, 50 Pac. 661.

There is no discretion vested in the common council in connection with the calling of this election. That body's functions are purely ministerial, but, if it be conceded that it was vested with some discretion, it does not follow that it can refuse to act. The duty of determining whether or not the petition contains the proper number of signatures and the comparing of them with the great register devolved upon the city clerk. He is the person given authority to hear and determine the question of sufficiency of the petition, and no appeal therefrom is provided and none apparently intended to be given. This is evident from the provision of the act requiring the return of the petition by the city clerk to the petitioners if found insufficient. and which, in effect, negatives petitioners' right of appeal. Whenever any board,

tribunal, or person is by law vested wita authority to decide à question, such decision, when made, is res judicata, and as conclusive of the issues involved in the decision as though the adjudication had been made by a court of general jurisdiction." Freeman on Judgments, § 531, cited and affirmed in People v. Los Angeles, 133 Cal. 342, 65 Pac. 749, and People v. Ontario, 148 Cal. 637, 84 Pac. 205. But conceding that the council had supervisory power and refused to order an election in the face of a sufficient petition, mandamus will lie to compel it to act. Sansom v. Mercer, 68 Tex. 488, 5 S. W. 62, 2 Am. St. Rep. 505; Keller v. Hewitt, 109 Cal. 146, 41 Pac. 871; Wood v. Strother, 76 Cal. 545, 18 Pac. 766, 9 Am. St. Rep. 249. It would be a strange perversion of the law if the common council in order to defeat one of the provisions of the charter, could, merely by dilatory action, not only refuse to comply with the directions of the charter, but prevent the courts from furnishing a remedy for the wrong done by its act. This would furnish the exception to section 3523 of the Civil Code that "for every wrong there is a remedy." Such a result is to be avoided, if possible. Conceding that provisions of the election law are mandatory, they are yet to be liberally construed to accomplish the purpose intended by the law. Jennings v. Brown, 114 Cal. 307, 46 Pac. 77, 34 L. R. A. 45; Packwood v. Brownell, 121 Cal. 480, 53 Pac. 1079. We find nothing in any of the cases cited that calls for a construction of the law that would defeat its purpose entirely, when there is one which would enable it to be enforced or carried out in the manner provided by its terms. The policy of the law and its effect are both much discussed in the briefs of counsel for both parties, as well as those of the amici curiæ, and the latter and the respondent have strenuously defended the constitutionality of the charter provision, although appellant disclaims any Intention of raising this question. The policy of the law has been considered by us only in so far as it was necessary to de termine the purpose and intention of the people of the city of San Diego in adopting the section involved. Whether, as applied, "their new scheme of reform will result in disastrous consequences" or not, is a matter that should have been considered by the people in adopting the amendment to the charter, but it cannot affect the action of this court on the question before it.

The constitutionality of the charter provision, not being presented by the appellant, has not been considered. The recent decision of the Supreme Court in Re Pfahler (Cal.) 88 Pac. 270, discusses many of the propositions of law presented by respondent in his brief in relation to the constitutionality of the section of the charter here being considered, as applied to other provisions of the charter of Los Angeles city, and