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company under obligation to provide for the payment of the principal of the bonds on their maturity, an obligation which otherwise would not have existed. Judgment of Circuit Court, Louisiana, affirmed. Jefferson City Gaslight Co. vs. Clark et al. Opinion by Field, J.

2. What amounts to substantial compliance with contract.-The indorsement by the president of the company on the bonds guaranteeing "the payment of the principal and interest" thereof, was a substantial compliance with the provision of the ordinance and contract as to the guaranty. Ib.

3. Legislative right to compel payment by city of equitable claims. It is competent for the Legislature to impose upon a city the payment of claims, just in themselves, for which an equivalent has been received, but which, from some irregularity or omission in the proceedings by which they were created, can not be enforced at law. Blanding vs. Burr, 13 Cal. 343; The Town of Guilford vs. Supervisors of Chenango County, 16 Barb. 615; Same case in Court of Appeals, 3 Kern. 143. Ib.

4. Retroactive law.-A law requiring a municipal corporation to pay such a claim is not within the constitutional provision inhibiting the passage of a retroactive law. Ib.

STATUTE OF FRAUDS.

1. Necessary contents of note or memorandum.—The note or memorandum required by the statute of frauds must furnish evidence of a complete and practical agreement, and unless the essential terms of the sale can be ascertained from the writing itself, or by reference in it to something else, the writing is not a compliance with the statute, and if the agreement be thus defective it can not be supplied by parol proof. Accordingly, receipts given for the payment of money on an alleged purchase of real estate was the subject of purchase; held, not sufficient under the statute. Baptist Church vs. Bigelow, 16 Wend. 31; Morton vs. Dean, 13 Metc. 385; 2 Kent's Com. (12th ed.), 511; Norris vs. Lain, 16 Johns. 151; Dung vs. Perkins, 52 N. Y. 494; Baltzen vs. Nicolay, 53 id. 467; Wright vs. Weeks, 25 id. 153; Parkhurst vs. Van Cortland, 1 Johns. Ch. 273; 14 id. 15; Barry vs. Coombs, 1 Pet. 648; Clark vs. Burnham, 2 Story, C. C.; Story on Sales (4th ed.) § 257. Decree of Supreme Court, D. C., reversed. Williams et al., vs. Morris, Executor. Opinion by Clifford, J.

2. Part performance: what party claiming benefit of must show. -Where the attempt is to take the case out of the statute upon the ground of part performance, the party making the attempt must show, by clear and satisfactory proof, the existence of the contract as laid in his pleading, and the act of performance must be of the identical contract which he has in that manner set up and alleged. It is not enough that the act of part performance is evidence of some agreement, but it must be unequivocal and satisfactory evidence of the particular agreement charged in the bill or answer. Phillips vs. Thompson, 1 Johns. Ch. 149; Browne on Fraud, § 452; Jones vs. Peterham, 8 Serg. & R. 543; Morphett vs. Jones, 1 Swanst. 172; Ex parte Hooper, 19 Ves. 477; Frame vs. Dawson, 14 id. 386; 7 id. 341; 3 Parsons on Cont. (6th ed.), 60; Chitty on Cont. (10th ed.) 66 and 278; 1 Story's Eq. (9th ed.), § 761. Ib.

San Francisco Law Journal.

VOL. I.

FEBRUARY 9, 1877.

No. 24

Current Topics.

The following is the full text of the bill signed by the Governor, amending section 307 of the Civil Code, affecting minority representation of stockholders in corporations :

All elections must be by ballot, and every stockholder shall have the right to vote in person or proxy the number of shares standing in his name, as provided in section 312 of this Code, for as many persons as there are directors to be elected, or to cumulate said shares and give one candidate as many votes as the number of Directors multiplied by the number of his shares of stock shall equal, or to distribute them on the same principle among as many candidates as he shall think fit. In corporations having no capital stock each member of the corporation may cast as many votes for one Director as there are Directors to be elected, or may distribute the same among any or all the candidates. In either case the Directors receiving the highest number of votes shall be declared elected.

It now seems to be settled that the Legislature will act upon the vote taken in September last and call a Constitutional Convention. The Joint Committee of both Houses held a long consultation on Saturday evening, and determined upon a set of principles which they will recommend to the Legislature, to be embodied in the bill. The first of these is that the Convention shall be called to meet at the State Capital. The second point determined is that the election for delegates shall be held on the second Wednesday in June. The present session terminates on the 1st of April. This will afford ample time for legislators to return to their homes, and take part in the canvass for the election of delegates. Sufficient time will also be allowed for a diversion of the attention of the people from the doings of the Legislature to a selection of suitable men as delegates. The third point agreed upon is that the Convention shall meet on the third Monday in September. This will allow time for a discussion of the subjects which are brought before the Convention. The Committee further agree to recommend that the Constitution, as agreed upon, shall be submitted to the people for ratification or otherwise. It will be seen that care has been taken not to take any proceedings in this matter with undue haste. The majority of the bills which have been presented on this subject have gone

in the other direction. Proposals were made that elections for delegates should take place, the Convention met, and the Constitution submitted to the people in September. The Committee have recommended the adoption of the longest time allowed under the present Constitution before the Convention convenes. The deferring the election until May of next year will afford ample opportunity for digesting all the changes proposed. There is also another argument in favor of the course proposed by the Committee. The present State Administration will continue for the term for which it was elected, and it will be unnecessary to call a special session of the Legislature to conform the laws to the new Constitution, should the people adopt it.

The fifth principle agreed upon by the Joint Committee embraces a new departure in California politics. It introduces minority representation. Every person is agreed that in so important a matter as the establishment of an organic law the people should be before party. It is hoped that under the system proposed, the best men in the State, irrespective of party, will occupy seats in the Convention. Minority representation forms part of the organic law of Illinois, and is in operation in the United Kingdom in all constituences returning more than two members to Parliament. The number of delegates is fixed at 165-120 to be elected according to the basis of three delegates for each Senator, and 45 at large. Each voter in the district that elects three delegates will have two votes, and where two Senators are elected, each elector can vote for four delegates. Carrying this principle to the delegates at large, each voter votes for thirty out of forty-five. The per diem of the delegates is to be $5 for 100 days. No mileage is to be allowed. If the Convention continues in session longer than 100 days, the delegates will remain at their own cost.

Another point agreed to by the Joint Committee, is of great importance to San Francisco. It is inferred that the delegates from San Francisco, shall be voted for by the whole city and not by Senatorial districts.

In Blanchard vs. Bracken, just decided by the Supreme Court, some important questions were raised and settled.

We would be glad at this time to give the judgment in full as rendered by the learned District Judge (E. Fawcett) but lack of time and space forbid.

The following are the facts as filed by the court below: That plaintiff holds a certain tract of land under a patent issued by the U. S. Government, on the 22d of April, A. D., 1872, being a confirmed Mexican grant. That said land That another abuts upon a small stream of water called Santa Paula Creek. small stream called Siscar Creek is a tributary and above the point where plain tiff has erected his flouring mills. Plaintiffs used all the waters of said Santa Paula creek, for the use of their mills-that the waters of said Siscar Creek were also necessary for the full capacity of said mills. Defendant in May 1869, diverted' and appropriated to his use all the waters in said Siscar Creek, and held the same continuously and peaceably since that date and claiming the same adversely to all others and by right of appropriation; conducting the same over public lands of the United States to his own about three-fourths of a mile distant from said creek. His appropriation was prior in point of time to that of plaintiff. Upon these facts the court below held that plaintiffs are riparian owners holding under a patent issued by the United States Government, on the

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22d of April 1872; that the legal title remained in the Government until the patent issued. That the statutes of limitations never runs againt the Government; that the patent passed the legal title thus held free of all drains on the ground of adverse possession and defendants user must have continued five years after the date of the patent before he could successfully interpose his claim of adverse possession. Matthews vs. Ferrea, 45 Cal. 51; Wilkins vs. McCue, 46 Cal. 656; Gardiner vs. Miller, 47 Cal. 570; Gardiner vs. Schmaezle, id. 588; Hagan vs. Spect, 48 Cal. 406; Galindo vs. Witanmeyer, 49 Cal. 12; Reed vs. Ybarra, 50 Cal. 465.

It was urged by defendant that by the Act of Congress of July 26th, 1866, (2 Br. Dig. p 404, Chap. 21, Sec. 105), U. S. Revised Statutes, Sec. 2339-40), his right to appropriate water on the public lands is recognized, and protected that since the United States was the holder of the legal title to the lands claimed by the plaintff, the patent vested the title in plaintiff, subject to this right carved out of, or reserved from the estate. To this the court says: "The Act in question embraces only public lands of the United States. It does not follow that all the lands to which the United States holds the legal title, are public lands. The Government may hold as trustee as well as an individual. Lands embraced within a confirmed Mexican grant, are not public lands-they are not part of the public demoin. The whole equitable estate is vested in the confirmee and his successors, and the Government holds the naked legal title only, and in trust until the patent issues. Plaintiff's lands are of this class, and it would not be competent for Congress, or any other power, to grant away, diminish, or destroy their estate," citing New hall vs Sanger, just decided by the Supreme Court of the United States. 2 Otto 761.

In conclusion the court says: "The legal and equitable title then became united in plaintiff's, in April 1872, and they became invested with all the rights of riparian owners unimpaired by any act of Government. Defendant must be restrained from diverting, or continuing to divert, the waters of Siscar creek from their natural channel. Let a decree of perpetual injunction be entered accordingly.'

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The defendant assigned also as error the judgment of the court allowing plaintiff to give in evidence the recorded copy of patent. Before the introduction, however, plaintiff filed an affidavit alledging that he owns the lands by mesne conveyances from the patentees; that all the conveyances and United States patents, are duly recorded in the Recorders office of Ventura county, as transcribed from the records of Santa Barbara county, that the originals, nor any of them, are not in the possession or control of affiant, and therefore he offers in evidence record and copy of conveyances under section 1951, Code of Civil Procedure. The Supreme Court affirmed the judgment.

Judge Wheeler, of the Nineteenth District Court, has rendered a decision in the case of John Parrott vs R. S. Floyd and others. The following is the text of the decision:

This is a bill for an injunction restraining defendants from constructing a street railroad along California street from Battery to Market, in this city and county. An injunction was granted in the first instance, and defendants now move its dissolution. It appears that the plaintiff is the owner of a building fronting on that portion of California street, in which a wholesale business is carried on; that California street, along the route of the proposed road, is de

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voted chiefly to wholesale business; and that, by reason of the peculiar char acter of that business, much of the street is required in front of plaintiff's building in the loading and unloading of drays and trucks. That if the proposed railroad is constructed, it will seriously interfere with such business, and will impair the value of plaintiff's said property. Taking these to be the leading facts in the case, the plaintiff contends, as a matter of law, that the defendants have no right or authority to construct said road. I am satisfied that the Civil Code contains the law now in force touching the power of local authorities to grant street railroad privileges. This being assumed, two questions are presented: First, has the Board of Supervisors power to grant a privilege of this character to individuals as well as to corporations? Second, if so, was the ordinance granting to defendants the right to construct their road duly and legally passed? The Civil Code, from sections 497 to 511, both inclusive, deals with the subject of grants to street railroad companies. Section 497 provides that authority to lay railroad tracks may be obtained from the City Council." It uses this general language, without any designation as to who may thus obtain such authority; that is, as to whether it may be obtained by individuals, or by corporations, or both. The thirteen following sections treat of the mode of operating the roads and of various details connected therewith; but wherever in these sections the grantee of the franchise is mentioned, it is alluded to as a corporation. From this fact, the plaintiff contends that the city authorities are restricted in making these street railroad grants to corporations only. While there is no good reason, considered as an original proposition, why the Board of Supervisors should not grant a railroad franchise to a company not incorporated, as well as to one that is incorporated, still I should deem plaintiff's position correct, were it not for the concluding section of the statute. It is as follows: "When a street railroad is constructed, owned and operated by any natural person, this title is applicable to such person in like manner as it is applicable to corporations." This section, read in connection with section 497, removes all doubt in my mind as to the intention of the Legislature. And while the legislative will might have been more clearly expressed it is quite evident, taking the whole Act together, that the Board has power to grant street railroad franchises to individuals, as well as corporations. Second-Was the ordinance making the grant to the defendants duly passed? There is no question made touching the regularity of the passage of the ordinance before it was sent to the Mayor for his approval. The Mayor, however, did not approve it, but returned it with his objections. The objections were then entered on the journal of the Board, and published for five days in a city newspaper. These proceedings, also, are free from legal objection. The law then provides that, "If at any stated meeting thereafter, two-thirds of all the members elected to the Board vote for such ordinance or resolution, it shall then, despite the objections of the Mayor, become valid." The stated meetings of the Board are held on the first Monday of January, April, July and October. The Mayor's vote was received by the Board November 23d, the publication then made, and the final vote taken on the first day of December. The evidence shows that the stated meeting of October adjourned from time to time down to December 1st. The meeting of December 1st was, then, a continuation of the stated meeting of October. Dillon, in his work on Municipal Corporations, section 225, lays down this rule: "A regular meeting may adjourn to a future day; and at such meeting it will be lawful to transact any business which might have been transacted at the stated meeting, of which it is, indeed, but the continuation."

The meeting of December 1st, was, then a stated meeting within the meaning of the statute; and at that meeting nine members of the Board voted for the ordinance, it became valid notwithstanding the objections of the Mayor. From these views it follows that the defendants have the legal right to construct their proposed railroad along the route designated in the ordinance; and any incidental damage or inconvenience suffered by the plaintiff by reason thereof seems to be without remedy. It is ordered that the injunction be dissolved

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