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and we think it does clearly allege, a cause | plaint, would neither intensify nor excuse of action for extreme cruelty. The demur- the defendant's acts. rer to the second count was properly over

ruled.

The findings that on various occasions defendant spoke harshly to plaintiff, and that plaintiff believed her life to be in danger, are sufficiently sustained by the testimony of plaintiff supported by that of her brotherin-law. The force of the latter's corroboration is not broken in the least by his testimony: "Personally I have never seen him (defendant) in a mood to hurt any one." This statement immediately following the declaration that the witness had never seen the appellant with a deadly weapon obviously meant that Mr. Downing had never seen Grierson ready to perform any act of personal violence; but that the latter did speak harshly to his wife, and that Mrs. Grierson was afraid of him, are facts that may be derived from the testimony of both wit

nesses.

Appellant's counsel calls our attention to the omission of the superior court to find on paragraph 6 of the complaint. That paragraph is as follows: "That the defendant is a highly nervous and excitable man, frequently drinks, and when in that condition is dangerous. Said defendant has so frequently threatened to kill plaintiff and the said child that plaintiff is afraid that he will carry said threat into execution." The court specifically found that it was not true that defendant threatened to kill his wife or child, and this is, of course, a finding adverse to the allegation that she was afraid he would carry said threat into execution. Obviously plaintiff could not be afraid that an unuttered threat would be executed. The court found in accordance with nearly all of the substantial allegations of a preceding paragraph of the complaint "that frequently *** the defendant would become intoxicated, and would reel around the yard and house so that neighbors and strangers could see his condition," and "that on many occasions the defendant, while intoxicated, would lie down in the house with his pipe in his mouth, and while the pipe was lit and full of live coals, the defendant would go to sleep, thereby endangering plaintiff's life, and the home and property of the parties hereto." These findings seem to cover all the other allegations of paragraph 6 except, perhaps, the one that "defendant is a highly nervous and excitable man," and that, we think, was an immaterial allegation. The obligation is upon all men, whether they be nervous, phlegmatic, excitable, or habitually calm to treat their wives decently. While courts might, in some cases, be inclined to show more charity towards nervous, excitable men than towards others less mercurial of temperament, we think that these characteristics, when alleged as in this com

The judgment and order are affirmed.

We concur: HENSHAW, J.; LORIGAN, J.

PASS SCHOOL DIST. OF LOS ANGELES COUNTY v. HOLLYWOOD CITY SCHOOL DIST. OF LOS ANGELES COUNTY. (L. A. 2,296.)

(Supreme Court of California. Nov. 1, 1909. Rehearing Denied Dec. 1, 1909.)

1. SCHOOLS AND SCHOOL DISTRICTS (§ 32*)NATURE-DIVISION, CHANGE OR ABOLITIONPOWER OF LEGISLATURE.

School districts of California, being public quasi municipal corporations, subject to constitutional limitations, the power of the Legislature over them is plenary, and it may divide, change, or abolish them at pleasure.

[Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig. § 54; Dec. Dig. § 32.*1

2. SCHOOLS AND SCHOOL DISTRICTS (§ 41*)— ALTERATION OF BOUNDARY EFFECT ON PROPERTY RIGHTS.

By the annexation of land belonging to a school district to a city and a city school district, which by virtue of Pol. Code, § 1576, sprang at the same time into existence, the power of the first-named district to use the property for school purposes ended, and the legal title passed to the trustees of the new district, since under section 1617 the management and is vested in the trustees of the district. control of school property within their districts

[Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig. § 72; Dec. Dig. § 41.*]

3. SCHOOLS AND SCHOOL DISTRICTS (§ 41*)DIVISION-PROPERTY-DEBTS.

While the Legislature may provide for the division of the property of a school district and the apportionment of the debts of the old corporation, when a portion of its territory and public property are transferred to the jurisdiction of another corporation, in the absence of such provision, the common-law rule obtains which leaves the property where it is found, and the debt on the original debtor.

School Districts, Cent. Dig. § 72; Dec. Dig. § [Ed. Note. For other cases, see Schools and 41.*]

4. CONSTITUTIONAL LAW (§ 278*)-DUE PROCESS OF LAW-DIVISION OF SCHOOL DISTRICT -TRANSFER OF PROPERTY.

islature and the transfer of part of the property The division of a school district by the Legto a new district is not a taking of property without due process of law; the state being the beneficial owner, and the transfer amounting merely to the naming of new trustees.

[Ed. Note.-For other cases, see Constitutional Law, Dec. Dig. § 278.*]

Department 2. Appeal from Superior Court, Los Angeles County; N. P. Conrey, Judge.

Action by the Pass School District of Los Angeles County against the Hollywood City School District of Los Angeles County. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals. Affirmed.

HENSHAW, J. This action was brought to quiet title to a piece of land and the schoolhouse thereon formerly within the limits of plaintiff school district and used by the district for public school purposes. Judgment passed for defendant school district, and from that judgment and from the order denying its motion for a new trial plaintiff appeals.

W. Cole, for appellant. Robert Young, for | municipal property, upon the division of a respondent. municipality, municipal property consisting of real estate belongs to the municipality within which it is located by the division." The judgment of the trial court so decreeing was upheld. But appellant argues that this decision should be reconsidered; that it does violence to its constitutional rights in depriving it of property without due process of law; that it works great injustice; and that it is contrary to the law as laid down in the bestconsidered cases. Because of the earnestness with which these pleas are advanced, and of the brevity with which the subject was treated in the Vernon Case, more amplified discussion of the question may not be amiss. School districts of this state are public quasi municipal corporations. Hughes v. Ewing, 93 Cal. 414, 28 Pac. 1067; Kennedy v. Miller, 97 Cal. 429, 32 Pac. 558. Subject to such constitutional limitations as may exist, the power of the Legislature over these public municipal corporations is plenary. It may divide, change, or abolish them at pleasure. Hughes v. Ewing, supra; Bay View School District v. Linscott, 99 Cal. 27, 33 Pac. 781; 1 Dill. Mun. Corp. p. 54. By the legal annexation of the land in controversy to the city of Hollywood and the Hollywood City School District (which latter, by virtue of section 1576, Pol. Code, sprang at the same time into existence), the power of the Pass School District to use this property for school purposes undoubtedly came to an end; for, by section 1617 of the Political Code, the management and control of school property within their districts is vested in the trustees of the district. This proposition, as we understand it, appellant does not dispute. But it contends that title to this property still remained in the plaintiff district, with the correlative rights of leasing or selling the same.

The facts are stipulated, subject, as to some of them, to objections touching their admissibility. From these facts it appears that plaintiff for many years past has been and still is a school district of Los Angeles county. In 1889 the real property in controversy was deeded to the trustees of plaintiff "to be used as a schoolhouse, lot, and grounds." For such purposes plaintiff held and used the property until in November, 1903, when the city of Hollywood was incorporated, with which incorporation came into existence the Hollywood City School District, defendant herein. The school property in question was included, on the incorporation of the city of Hollywood and the organization of the Hollywood City School District, within the corporate limits of the latter, and is still included therein. The remaining portion of the Pass School District, not within the corporate limits of the city of Hollywood, continued as a school district under the name of the Pass School District. No petition has been filed on behalf of the existing Pass School District for annexation to the Hollywood City School District, as provided by section 1576 of the Political Code. The question presented may be thus stated: What, under the indicated circumstances, is the disposision made by the law of the real property of such corporation owned and used for the corporate purposes when, by a change in the boundaries, that property falls within the territorial limits of a new corporation organized for identical purposes? Or, wording it differently, did the title, dominion, power, and control over the land in controversy pass to the Hollywood City School District, or did they remain where formerly they had been, with the Pass School District? So far as this state is concerned, this question would seem to have been conclusively answered in favor of respondent by such cases as Los Angeles County v. Orange County, 97 Cal. 329, 32 Pac. 316, Johnson v. City of San Diego, 109 Cal. 468, 42 Pac. 249, 30 L. R. A. 178, and Vernon School Dist. v. Board of Education, 125 Cal. 593, 58 Pac. 175. The last case is directly in point. It was an action brought to quiet title by the Vernon School District to lands used for public school purposes originally within the territorial limits of the district, but subsequently, by annexation, falling within the corporate limits of the city of Los Angeles. It is there said that, "in the absence of stat

The legislative power being full and complete over the matter as a part of that power, it may make provision for the division of the property and the apportionment of the debts of the old corporation, when a portion of its territory and public property are transferred to the jurisdiction of another corporation. But, in the absence of such provision, the rule of the common law obtains, and that rule leaves the property where it is found, and the debt upon the original debtor. Johnson v. San Diego, 109 Cal. 477, 42 Pac. 249, 30 L. R. A. 178; Board of School Directors v. Ashland, 58 N. W. 377, 87 Wis. 533. Such is the declaration in the Vernon Case, in the cases of Bay View School District v. Linscott, 99 Cal. 27, 33 Pac. 781, of the Supreme Court of the United States in Laramie v. County of Albany, 93 U. S. 307, 23 L. Ed. 552, Mountpleasant v. Beckwith, 100 U. S. 535, 29 L. Ed. 699, McGovern v. Fairchild, 2 Wash. St. 479, 27 Pac. 173, Board of Education v. Board of Education, 30 W. Va. 424, 4 S. E. 640, 20 Am. & Eng. Corp. Cas. 11,. Allen v. School Town of Macey, 109 Ind. 559,

of New Point, 138 Ind. 141, 37 N. E. 650, | still be open to the children within the terriPrescott v. Town of Lenox, 100 Tenn. 591, 47 S. W. 181, Bloomfield v. Glen Ridge, 54 N. J. Eq. 280, 33 Atl. 925, Board of Education v. Board of Education, 30 W. Va. 424, 4 S. E. 640, 1 Dill. Mun. Corp. p. 64, 15 Am. & Eng. Ency. of Law, 1023, City of Wellington v. Wellington Township, 46 Kan. 213, 26 Pac. 415, and of cases from many other jurisdictions.

tory to which it originally belonged. This provision is found in section 1576 of the Political Code. But the residents within the plaintiff district have not seen fit to avail themselves of it. We are unable to perceive, therefore, that the rule adopted in this state either works injustice to plaintiff or does violence to any of its constitutional rights. Nor, to the last proposition which appellant urges, namely, that the weight of authority is contrary to that laid down in this state, can assent be granted. The authorities which he cites are Winona v. School District, 40 Minn. 13, 41 N. W. 539, 3 L. R. A. 46, 12 Am. St. Rep. 687; Board of Education v. School Trustees, 45 Kan. 560, 26 Pac. 13; 21 Am. & Eng. Ency. of Law (1st Ed.) Title "Schools," p. 791.

The Minnesota case unquestionably holds with appellant's contention, but it stands in single opposition to an otherwise unbroken current of authority. In this connection we have heretofore cited the decisions of the Supreme Court of the United States and of many sister states, with the text-writers thereon. The Minnesota case is expressly disapproved in Bloomfield v. Glen Ridge, 54 N. J. Eq. 280, 33 Atl. 925, and in Prescott v. Lenox, 100 Tenn. 591, 47 S. W. 181. The language of the Supreme Court of Kansas in Board of Education v. School Trustees is obiter, and later was expressly disapproved in City of Wellington v. Wellington Township, 46 Kan. 213, 26 Pac. 415, where that state adopts the accepted rule. The declaration in the first edition of the Am. & Eng. Ency. of Law under the head of "Schools" is modified in the second edition, where the rule adopted in Minnesota is set forth upon the authority of Winona v. School District, 40 Minn. 13, 41 N. W. 539, 3 L. R. A. 46, 12 Am. St. Rep. 687, supra, and other Minnesota cases, but where also it is declared: "On the other hand, it has been held that the common law leaves the property where it is found, and that, in the absence of special legislation to the contrary, a new school district which is organized from territory detached from an old school district, will not be required to pay anything to the old district on account of schoolhouses or schoolhouse sites or any real estate whatever belonging to the old school district and situated in

To the contention that a transfer of ownership thus accomplished works the taking of property without due process of law, it should be sufficient to point out that in all such cases the beneficial owner of the fee is the state itself, and that its agencies and mandatories-the various public and municipal corporations in whom the title rests-are essentially nothing but trustees of the state, holding the property and devoting it to the uses which the state itself directs. The transfer of title without due process of law, of which appellant so bitterly complains, is nothing more, in effect, than the naming by the state of other trustees to manage property which it owns and to manage the property for the same identical uses and purposes to which it was formerly devoted. In point of law, then, the beneficial title to the estate is not affected at all. All that is done is to transfer the legal title under the same trust from one trustee to another. In this sense the trustees of the Hollywood City School District became, by operation of law, successors to the trustees of the Pass School District, as is directly held in Allen v. School Town of Macey, 109 Ind. 559, 10 N. E. 578, where it is said: "It is now a well-recognized legal inference deducible as well from general principles as from the decided cases that under the Constitution and laws of this state public school property is held in trust for school purposes by the persons or corporations authorized for the time being to control such property, and that it is in the power of the Legislature to provide for a change in the trusteeship of such property in certain contingencies presumably requiring such a change, or, indeed, to change the trustees of that class of property whenever it may choose to do so." Even if such well-established principles could be set aside under the plea that they work injustice in the individual case, this plea here presented is without merit. The state is profoundly interested the new district." Moreover, in the fifteenth in the education of its young, but has no deep concern over the personality of the trustees who shall administer this trust, so long as the administration is in the orderly form of law. But to relieve against the possibility of injustice being worked by the operation of the rule which might, without recompense, take a schoolhouse away from one district and assign it to another, this state has made explicit provision whereby the use of the

volume of the same learned work, at page
1023, it is said: "The old corporation will
hold all the corporate property within her
new limits,
* and the new corpora-
tion will hold all the property falling within
her boundaries, to which the old corporation
will have no claim."

The judgment and order appealed from are therefore affirmed.

YOLO COUNTY v. JOYCE et al. (Sac. 1,720.) (Supreme Court of California. Nov. 1, 1909.)

1. DISTRICT AND PROSECUTING ATTORNEYS (8 7*)-CLAIMS-CRIMINAL CASES-EXPENSES -CERTIFICATION BY DISTRICT ATTORNEY.

Code Civ. Proc. § 274, providing that in criminal cases the fees for reporting and for transcripts ordered by the court must be paid out of the county treasury on the court's order, does not vest in the court exclusive power to order a transcript of testimony in criminal cases, but merely deals with fees to be paid reporters for reporting and transcribing when ordered by the court, and did not deprive the district attorney of authority to order a transcript of testimony of a criminal case at the county's expense, when he deemed it necessary under County Government Act (St. 1897, p. 575, c. 277), $228, subd. 2, providing that all expenses necessarily incurred by the district attorney in the prosecution of criminal cases shall be a county charge.

[Ed. Note.-For other cases, see District and Prosecuting Attorneys, Cent. Dig. § 34; Dec. Dig. § 7.*1

2. DISTRICT AND PROSECUTING ATTORNEYS (8 7*)-NATURE OF OFFICE.

A district attorney is an executive officer charged with the detection of crime and prosecution of criminal cases, in the furtherance of which he is authorized by County Government Act (St. 1897, p. 575, c. 277), § 228, subd. 2, to incur such expense as is necessary to enforce the criminal law.

[Ed. Note. For other cases, see District and Prosecuting Attorneys, Dec. Dig. § 7.*] 3. DISTRICT AND PROSECUTING ATTORNEYS (8 7*)-COUNTIES (§ 204*)-EXPENSES-CON

TROL-ALLOWANCE.

A district attorney's authority to incur expenses for the prosecution of crime, conferred by County Government Act (St. 1897, p. 575, c. 277), § 228, subd. 2, is not subject to the control or supervision of any court or judicial officer, but is a matter solely for the consideration of the board of supervisors to the extent of determining whether the expense was necessarily incurred so as to be a county charge under County Government Act, § 25, subd. 11 (page 459), vesting supervisors with authority to examine, settle, and allow all accounts chargeable against the county except salaries of officers, etc.

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LORIGAN, J. This is an action brought by the county of Yolo to recover from the defendant Hallie E. Joyce certain money claimed to have been illegally paid to her under an order of the board of supervisors of that county. On April 18, 1906, and for some time prior thereto, there was on trial in the superior court of Yolo county a criminal case entitled "People, etc. v. Dean McGrew," the further hearing of which, on account of legal holidays declared by the Governor following the earthquake in San Francisco and along the coast, it was necessary to adjourn for a considerable period or time. The trial was resumed on June 13,

1906, and the then district attorney of Yolo county, who was prosecuting the case, in anticipation of the resumption of the trial, directed the defendant Hallie E. Joyce, who was the stenographic reporter of the superior court, to transcribe the testimony of the witnesses who had theretofore testified, for the purpose of having such testimony read to the jury to refresh their minds. The district attorney considered it necessary to have such transcription made, and it was read to the jury. On June 29, 1906, the defendant Hallie E. Joyce presented a claim to the board of supervisors for $309 for the transcription of such testimony, upon which claim the then district attorney made an indorsement reciting that the transcript for which the bill was presented was used by him "in the pros4. COUNTIES (§ 204*)-COUNTY'S EXPENSES-ecution of Dean McGrew and was necessary ENFORCEMENT OF CRIMINAL LAW-DETERMINATION OF BOARD OF SUPERVISORS.

[Ed. Note.-For other cases, see District and Prosecuting Attorneys, Dec. Dig. §7;* Counties, Cent. Dig. §§ 312, 316-321; Dec. Dig. 8 204.*]

in the conduct of the trial of said McGrew." The board of supervisors of a county being The claim was allowed by the board of suvested with authority to determine the necessity pervisors, and a warrant issued for the of expense incurred by the district attorney in the enforcement of criminal law by County Gov-amount, ernment Act (St. 1897, p. 459, c. 277). $ 25, subd. 11, the board's determination of that question is conclusive.

[Ed. Note.-For other cases, see Counties, Cent. Dig. §§ 312, 316-321; Dec. Dig. § 204.*] 5. DISTRICT AND PROSECUTING ATTORNEYS (§ 7*)-ENFORCEMENT OF CRIMINAL LAWEXPENSES.

Under County Government Act (St. 1897, p. 575, c. 277), § 228, subd. 2, providing that the expenses of the county attorney, necessarily incurred in the prosecution of criminal cases, shall be a county charge, the district attorney is entitled to determine for himself, in the first

amount, which was paid on July 4, 1906..
A demand was subsequently made on the
defendant to pay back the amount of said
claim to the county, which she refused to do,
and this action was brought to recover it.
The court found the above facts, and, in ad-
dition, found "that the amount claimed for
said alleged service
was not an
expense necessarily incurred by the district
attorney of Yolo county in the detection of
crime or in the prosecution of a criminal
case." Judgment was entered for the plain-
tiff, from which, and from an order denying

*

This appeal is to be determined by a consideration of the proposition whether the district attorney had authority to incur liability for this claim against the county. It is provided by section 228 of the county government act of 1897 (St. 1897, p. 575, c. 277) as follows: "The following are county charges: *** (2) The traveling and other personal expenses of the district attorney incurred in criminal cases arising in the county and in civil actions and proceedings in which the county is interested, and all other expenses necessarily incurred by him in the detection of crime and the prosecution of criminal cases, and in civil actions and proceedings and all other matters in which the county is interested." By section 274 of the Code of Civil Procedure it is provided that: "For his services the official reporter shall receive the following fees: *** For reporting testimony and proceedings ten dollars per day. *** For transcription, for one copy 20 cents per hundred words. In criminal cases the fees for reporting and for transcripts ordered by the court to be made must be paid out of the county treasury on the order of the court. ***" By subdivision 11 of section 25 of the county government act the supervisors are vested with authority "to examine, settle, and allow all accounts legally chargeable against the county except salaries of officers and such demands as are authorized by law to be allowed by some other person and order warrants to be drawn on the county treasurer therefor."

It

her motion for a new trial, the defendants | 274 of the Code of Civil Procedure, fixing appeal. fees and providing how an allowance shail be paid to a reporter for reporting or for the transcription of testimony, which can be construed as a limitation upon the power of the district attorney, under the provisions of the county government act, in incurring an expense for the transcription of testimony to be used by him in a criminal case when he deems it necessary in the prosecution of a criminal case. The section of the Code of Civil Procedure only provides how payment shall be made upon order of the court when a transcription is ordered by the court. does not provide an exclusive method whereby such a transcription may be obtained, but provides only that when the transcription is ordered by the court the power to pay for it is exclusively vested in the judge and is to be made by an order drawn by the judge on the county treasurer; but because this power is conferred upon the court in a given instance furnishes no reason for saying that under the provision of the county government act a transcription of testimony may not be obtained by the district attorney, for use in a criminal prosecution, when he deems it necessary, except under an order of court, or that the board of supervisors, if they deem it a necessary charge, may not allow it. The district attorney is an executive officer charged with the detection of crime and the prosecution of criminal cases. In furtherance of the proper discharge of his duties, the Legislature has, under the section of the county government act, enlarged his power so as to permit him to incur expense necessary to enforce the criminal law. His authority to do so for that purpose is not made subject to the control or supervision of any court or judicial officer, but is a matter for the consideration of the board of supervisors alone to the extent of determining whether the expense was necessarily incurred so as to constitute a county charge. Of course, the right of a district attorney to incur expense is not an arbitrary one. All that the section of the county government act permits is to give to the district attorney, in the first instance, the discretion to determine whether it is necessary in the detection of crime, or the prosecution of a criminal case, to incur an expense chargeable against the county. Any such claim, however, must be presented to the board of supervisors for allowance, and that body reviews the action of the district attorney and determines whether the expense was a necessary one and acts accordingly; and as the board of supervisors is vested with the authority to determine the question whether the expense was necessary or not, and is the tribunal to which is committed, under the county government act, the jurisdiction to supervise the action of the district attorney in incurring the expense, its determination that it was a proper and necessary

It is insisted by the respondent, in support of the judgment of the trial court, that no charge against the county for the transcription of testimony taken down by an official stenographer of the superior court can be allowed, unless the order for its transcription is made by the judge of the superior court and the claim therefor approved and ordered paid out of the county treasury by the judge, under section 274 of the Code of Civil Procedure heretofore referred to. It will be observed, however, that this section does not vest exclusive power in the court to order transcription of testimony in criminal cases. The section simply deals with the fees to be paid official stenographers of the superior court for reporting and for transcribing testimony, when ordered in cases pending before the court, and prescribes the method whereby payment shall be made, namely, upon an order of court. By section 228 of the county government act it is provided, however, that expenses necessarily incurred by the district attorney in the "prosecution of criminal cases" are county charges, which, under subdivision 11 of section 25 of the same act, are to be paid out of the county funds under a claim presented to and allowed by the board of supervisors.

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