CORPORATIONS (Continued).

the exercise of a right guaranteed under the constitution of the United States. (Id.)

9. MAKING DIVIDENDS OUT OF CAPITAL STATUTORY LIABILITY OF DIRECTORS-RIGHT OF CORPORATION TO ENFORCE.-Where the directors of a corporation make dividends out of other than surplus profits, contrary to the provisions of section 309 of the Civil Code, the right to recover upon the liability defined by that section is not limited to a recovery on behalf of the stockholders or the creditors of the corporation, but the corporation itself may maintain a suit to enforce such liability. (Southern Cal. Home Builders v. Young, 679.)

10. ACTUAL DAMAGE TO CORPORATION.-Where the directors of a corporation make dividends out of other than surplus profits contrary to the provisions of section 309 of the Civil Code, the actual damage to the corporation is the amount which its capital is depleted by the unlawful dividends. (Id.)

11. RECOVERY BY CORPORATION FROM STOCKHOLDERS DIMINUTION OF RIGHT TO RECOVER AGAINST DIRECTORS.-The right of the corporation to recover from those to whom corporate assets may have been unlawfully transferred does not affect the statutory liability of the directors who rade the unlawful distribution, unless the corporation, in the exercise of the first right, causes the replacement, in whole or in part, of what was taken from the corporation. In that event the liability of the directors would be diminished proportionately or expunged, since the corporation would be entitled to what was taken and no more. (Id.)

12. ACTION TO ENFORCE STATUTORY LIABILITY OF DIRECTORS-PARTIES -RIGHTS OF DIRECTORS AGAINST STOCKHOLDERS IMMATERIAL.—In an action by the corporation against the directors to enforce the liability of the latter for making dividends out of other than surplus profits, neither the corporation nor the court is concerned with the question of any subsequent rights of the directors to pursue the stockholders to whom such dividends were paid, they being neither necessary nor proper parties to the litigation. (Id.) 13. ACCEPTANCE OF UNLAWFUL DIVIDENDS RATIFICATION-ESTOPPEL.— The mere acceptance by the stockholders of the dividends declared out of other than surplus profits, unaccompanied by any other fact which might present equitable considerations, will neither operate as a ratification of the wrongful act nor as an estoppel against the right of the corporation to enforce the statutory liability defined by section 309 of the Civil Code. (Id.)

14. GOOD FAITH OF DIRECTORS-WHEN A DEFENSE.-In an action by the corporation to recover upon the statutory liability of the directors for having made dividends out of other than surplus profits, good faith on the part of the directors in believing that

CORPORATIONS (Continued).

there were surplus profits out of which such dividends could be paid does not constitute a defense. If that defense could ever be considered, it would only be where the pleadings clearly and in detail show the facts of fraud and dishonesty practiced upon the directors, and further show facts from which the conclusion would follow irresistibly that the directors could not have guarded against such fraud. (Id.)

15. SURPLUS PROFITS DEFINED. The term "surplus profits" is the equivalent of net receipts, that is, the receipts of a business after deducting current expenses. Neither money earned as interest, however well secured, or certain to be eventually paid, nor mere advance in value of property prior to its sale, nor estimated profits on partially executed contracts, constitute profits within the meaning of the statute so as to entitle the directors of a corporation to make dividends therefrom. (Id.)

COSTS.

See Accounting, 3; Agency, 5; Contracts, 25; Evidence, 4; Payment, 1; Place of Trial, 1, 3; Pleading, 3, 6, 9; Promissory Notes, 3, 6.

NATURE OF RIGHT TO WHEN MAY BE RECOVERED.-The right to recover costs is purely statutory, and in the absence of statute, no costs can be recovered by either party, whether the court is sitting as a court of law or of equity. (People v. Feraud, 765.)

See Appeal, 8; Mortgages, 2; Red Light Abatement Act, 4, 5.

COUNTIES.

1. PARTNERSHIP CLAIMS AGAINST-VERIFICATION OF.-Sections 4075 and 4076 of the Political Code do not require that partnership claims against a county shall be verified by a member of the partnership. (Nohl v. County of Del Norte, 306.)

2. FORM OF CLAIMS-WAIVER OF OBJECTIONS.-Where claims presented to the supervisors are passed upon and rejected, and no objection is made to the form until after the commencement of an action thereon, objection as to the form of the claim presented is waived. (Id.)

3. REJECTION OF CLAIMS-RIGHT TO BRING SUIT.-Where claims against a county growing out of an alleged violation of a certain contract for road work are passed upon and rejected, the claimant may, under the provisions of section 4078 of the Political Code, bring a suit thereon, notwithstanding such claims were not approved, before filing, by the road commissioner, or some other officer, as required by section 4076 of said code. (Id.)

COUNTIES (Continued).

4. ACTION FOR DAMAGES

FOR BREACH OF CONTRACT-ALLEGATION OF NONPAYMENT.-In an action for damages for breach of contract, it is sufficient for the purposes of demurrer to aver in the complaint the contract, the breach complained of, and general damages. An allegation of nonpayment is not necessary. (Id.) 5. FAILURE ог PERFORMANCE -SUFFICIENCY ог ALLEGATION-DEMURRER.—In an action for damages for breach of contract an allegation that "contrary to the wishes and will of plaintiffs, defendant did wrongfully and without cause fail and refuse to perform said agreement according to the terms thereof or at all, to plaintiffs' damage," etc., is sufficient to withstand a general demurrer. The objection that the complaint does not show how or in what respect the defendant failed to perform its part of the contract should be taken by special demurrer. (Id.)

6. CONTRACT BY SUPERVISORS-LIABILITY OF COUNTY FOR VIOLATION. Where the supervisors acted within the scope of their authority as agents of the county in entering into the contract, and had the power to authorize the acts complained of and to bind the county therefor, the contract being one which they were empowered to make, the county is liable for the violation of such contract. (Id.)

7. TRANSPORTATION OF INTOXICATING LIQUORS-POWER OF SUPERVISORS TO REGULATE.-The board of supervisors has the power to provide that no package or consignment of intoxicating liquors shall be brought into or transported through the county unless a prescribed label showing the true name and quantity of each kind of liquor therein contained, and the names and addresses of the consignor and consignee, shall have been placed thereon before leaving the place of business of the person furnishing the package of liquor, even though that place be in another county. (People v. Velarde, 520.)

8. SCOPE OF POLICE POWERS.-The police power vested in every county by section 11, article XI, of the constitution is as broad as that vested in the legislature itself, subject to the two exceptions that it is local to the county and that it is subject to the general laws. (Id.)

9. POWER TO PROHIBIT SALE OF INTOXICATING LIQUORS.-A county, in the exercise of its police power, may prohibit the selling of intoxicating liquors within its jurisdiction. (Id.) 10. SUPPRESSION OF PUBLIC EVIL-ADOPTION OF REASONABLE MEASURES. When a county, asserting its recognized authority, undertakes to suppress what it is free to regard as a public evil, it may adopt such measures having reasonable relation to that end as it may deem necessary in order to make that action effective. It does not follow that because a transaction, separately considered,

COUNTIES (Continued).

is innocuous, it may not be included in a prohibition the scope of which, in the legislative judgment, is regarded as essential to the accomplishment of the primary purpose of the enactment. (Id.) 11. REVIEW OF LEGISLATIVE JUDGMENT BY COURTS.-With the wisdom of the exercise of the legislative judgment the court has no concern; and, unless it clearly appears that the ordinance has no substantial relation to a proper purpose, it cannot be said that the limit of legislative power has been transcended. (Id.) 12. REGULATING TRANSPORTATION OF INTOXICATING LIQUORS REASONABLENESS Of Ordinance.-There is nothing unreasonable or oppressive about a county ordinance which declares that it shall be unlawful for any person to carry or tranport into the county "any intoxicating liquor without having placed upon each package and consignment thereof a mark or label showing the true name and quantity of each kind of liquor therein contained, and the names and addresses of the consignor and consignee, and all such packages shall be so marked and labeled before leaving the place of business of the person... so furnishing, shipping or delivering the same, provided, however, that this section shall have no reference to interstate commerce passing through the county." (Id.) 13. EXTRATERRITORIAL SCOPE OF COUNTY ORDINANCE. Such an ordinance does not constitute an attempted exercise of police power beyond the county's limits, but operates only within the county to prevent the act of carrying or transporting through or across the county any intoxicating liquor that has not been marked or labeled in the prescribed manner. (Id.)

...

14. NONEXEMPTION OF INCORPORATED TERRITORY-VALIDITY OF ORDINANCE.-A county police regulation is not void merely because the ordinance does not expressly exempt from its operation the territory of all the incorporated cities and towns within the county. A failure to expressly exempt from an ordinance territory over which the county cannot exercise its police powers is not evincive of an attempt to assert the county's authority over such territory.

15. ADOPTION OF REASONABLE REGULATIONS-IMPAIRMENT OF RIGHTS OF INDIVIDUALS.-As a means of preventing the illegal sale of liquor within the county, outside of municipal corporations, the county has the right to prescribe any reasonable regulation as a condition to the exercise of the right to bring liquor into or transport it across any part of the county, even though such liquor be owned by the person bringing it into the county and it be intended for his own personal use. (Id.)

16. INVALIDITY OF SEPARATE PROVISION

OF ORDINANCE REMAINDER

ENFORCEABLE.-The fact that there is a conflict between the penalty provided by a given section of a county ordinance for

COUNTIES (Continued).

a particular offense and the penalty provided by the state law for the same offense cannot affect the validity of other sections of the ordinance. A county ordinance, like a legislative statute, may be good in part and upheld, while a part may be illegal and void; and if there are several provisions of an ordinance, some of which are void and others valid, and a penalty is provided applying to each offense separately, the ordinance may be enforced as to the offenses respecting which it is valid, just as if the void parts never had been incorporated therein. (Id.)

17. PROSECUTION FOR VIOLATION OF ORDINANCE-FAILURE TO OBJECT TO OFFER OF COPY IN EVIDENCE-PRESUMPTIONS.-Where no objection is made to the offer in evidence of a copy of a county ordinance, and the ordinance is thereupon introduced in evidence, the failure to object to its introduction must be construed as an admission that it was competent evidence, and that all essential prerequisites to make it an existing and operative by-law of the county had been complied with. (Id.)

18. OFFER OF BRIBE-CONSCIOUSNESS OF GUILT - EVIDENCE.-In a prosecution for the violation of a provision of a county ordinance regulating the carrying and transportation of intoxicating liquors within its boundaries, evidence that soon after the arrest the defendant offered the arresting officer a sum of money if he would let him go is admissible as an admission tending to show consciousness of guilt. (Id.)

19. LOCUS DELICTI-SUFFICIENCY OF INFORMATION.-In such a prosecution it is not necessary that the information should specifically allege that the offense was committed outside of an incorporated city or town. It is sufficient if it follows the language of the ordinance. (Id.)

20. LOCUS DELICTI WITHIN COUNTY-JUDICIAL NOTICE.-Where the defendant, while actually violating a provision of the ordinance, is arrested at a spot on a well-known highway within the county, about a mile and a half from a given town, the court will take judicial notice that such place is not within the limits of any incorporated city or town. (Id.)

21. IMPRISONMENT IN DEFAULT OF PAYMENT OF FINE-ERRONEOUS JUDGMENT.-Where such an ordinance provides that a person convicted of a violation of any of its provisions shall be fined not more than a given sum, or be imprisoned in the county jail for not more than a given period, or be punished by both such fine and imprisonment, and a judgment of both fine and imprisonment are imposed, the court is without power to further order that in default of the payment of the fine the defendant is "to serve out this sentence in the county jail at the rate of two dollars per day." (Id.)