able the court to find the value. The defendant is liable only for the wholesale price or value; that is, of the going price when sold in similar lots by manufacturers to the trade. The judgment and order are reversed.

We concur: SLOSS, J.; ANGELLOTTI, J.

(5 Cal. App. 678)

SUMMERFIELD v. DOW. (Civ. 397.) (Court of Appeal, Second District, California. June 4, 1907. Rehearing Denied by Supreme Court Aug. 3, 1907.) JUSTICES OF THE PEACE-COMPENSATION STATUTES-VALIDITY.

Pol. Code, § 4014, as amended in 1907, provides for two justices of the peace in each township, except in townships containing cities in which city justices are elected, and in townships having a population of less than 5,000, there shall be but one, and except in townships containing a population of more than 100.000 and less than 300,000, there shall be four. Section 4231, subd. 15, as amended by St. 1907. p. 424. c. 10, fixes the salary of justices of the peace by allowing them the fees allowed by law, except that no justice shall receive more than $1,500 per annum for services rendered by him in criminal cases, and except that in townships having a population of more than 100,000 and less than 300.000, each justice shall receive a salary of $3.000 per year, which shall be in lieu of all fees for the performance of any official act. Held, that section 4231, subd. 15, as amended, is not in conflict with Const. art. 11, § 5. providing that the Legislature shall regulate the compensation of all officers in proportion to duties, since the adjustment of compensation between the different classes of justices is based on proper distinctions.

Petition for a writ of mandate by Joseph W. Summerfield against Herbert G. Dow, as auditor of Los Angeles county, to compel respondent to draw a warrant on the county treasurer to pay petitioner his salary. Writ granted.

C. L. Shinn, for petitioner. Anderson & Anderson, for respondent.

TAGGART, J. Petition for writ of mandate. Petitioner is a justice of the peace for Los Angeles township, Los Angeles county. Respondent is the auditor of Los Angeles county. On May 11, 1907, petitioner demanded of respondent that he draw a warrant upon the treasurer of Los Angeles county for $250, payable to petitioner as his salary for the month of April, 1907, under the provisions of subdivision 15 of section 4231 of the Political Code, as amended March 18, 1907 (St. 1907, p. 424, c. 10). Respondent refused to issue said warrant, and, as cause why the mandate of this court should not issue commanding him to do so, says the statute providing for such salary is unconstitutional. The provision of the Constitution said to have been violated by the Legislature in enacting the section mentioned is the requirement of section 5 of article 11 that "It [the Legislature] shall regulate the compensation of all such officers [county, township and municipal officers] in proportion

to duties," etc. Section 4014 of the Political Code, as amended in 1907, provides for two justices of the peace in each township of the state; provided that in townships containing cities in which city justices or recorders are elected and in townships having a population of less than 5,000 there shall be but one, and provided further that in townships containing a population of more than 100,000 and less than 300,000 there shall be four justices of the peace. Subdivision 15 of section 4231, which relates to the compensation of justices of the peace in counties of the second class (Los Angeles), provides that justices of the peace shall receive as compensation "such fees as are now or may be hereafter allowed by law; provided that no justice of the peace shall receive more than $1,500 per annum, which may be paid in monthly installments of not exceeding $125 per month for all services rendered by him in criminal cases * or proceedings to which the people of the state of California are parties. And provided further, that in townships having a population of more than one hundred thousand and less than three hundred thousand each justice of the peace shall receive a salary of three thousand dollars per year, payable in like manner and out of the same fund, and at like times as county officers are paid and such salary shall be in lieu of all fees due or to become due such justice for performance of any official act. And all fees shall be and become

the property of the county in which such justice exercises his jurisdiction." Another proviso requires the board of supervisors of the county to provide an office and necessary furniture therefor and appoint a clerk for each of said four justices' courts, and a salary of $100 per month is provided to be paid to each of said clerks.

Los Angeles township is the only one in Los Angeles county to which the provisions as to clerks, salary, offices, etc., can apply, and it is contended: First, that the compensation provided is not in proportion to the duties that the respective justices of that township may be required to perform; and, second, that, when compared with the compensation fixed for justices of the peace in other townships of Los Angeles county, the salary allowed is not in proportion to the duties of the office.

While it is possible, we might even say probable, judging from human nature in the average, that some of the justices of the township in question will perform more of the duties of the office than others, we do not think this is a failure of uniformity of operation which can be reached in this manner. This presents one of those evils of our governmental system which must find relief at the ballot box. A statute which provides four officers to attend to all the business of a specified kind within a certain district at equal salariés impliedly imposes a duty upon

these officers to equitably apportion the business among them, whether there be any express statutory regulations in this regard or not. Any inconvenience to the public from the overzeal of one or more of the incumbents of the office of justice of the peace to do too much (or too little) will have to be borne until the opportunity arises to change the personnel of the offices. That a more excellent system was provided for San Francisco by the Code of Civil Procedure (section 85 et seq.) does not imply that the latter is the only constitutional plan. The validity The validity of a law is not to be tested by its application to extreme cases, or by assuming that public officers will grossly and arbitrarily violate their duties. If every law were declared unconstitutional which by the application of such tests could be shown capable of working injustice, we would have very few laws left. Rode v. Siebe, 119 Cal. 520, 51 Pac. 869, 39 L. R. A. 342.

The greater stress, however, is laid upon the objection that there is not a due apportionment of duties and compensation between the justices outside of Los Angeles city and those inside. The path of judicial interpretation through the field of county and township legislation discloses many byways. Conflicting views are not wanting in the various declarations of the law on the subject by the courts. But we are not called upon to distinguish these cases, nor to attempt to reconcile them in reaching a conclusion on this point. The two cases relied upon by respondent to sustain his position that the law is unconstitutional (Tucker v. Barnum, 144 Cal. 266, 77 Pac. 919, and Millard v. Kern County, 147 Cal. 682, 82 Pac. 329) hold that a classification of townships by population for the purpose of fixing the compensation of the officers thereof, according to the method prescribed by the Constitution for classifying counties, is valid and proper. In Tulare County v. May, 118 Cal. 308, 50 Pac. 427, it is held that different methods of fixing compensation of county officers may be provided in different counties. In Vail v. San Diego Co., 126 Cal. 35, 58 Pac. 392, the same doctrine is declared and rule applied where a county officer in one class of counties was compensated by salary and the same officer in all the other classes of counties in the state received fees and a per diem for services rendered. This rule is recognized and applied to township officers in two different classes of counties in the later case of Johnson v. Gunn, 148 Cal. 745, 84 Pac. 665. In Tucker v. Barnum, the unequal limitations upon the fees that might be collected for the same services was declared to violate the rule that compensation must be in proportion to duties, and also to violate the rule as to local and special laws affecting the fees and salaries of officers. The act before the court in Millard v. Kern Co. was declared invalid on the authority of the

former case, and was subject to the same objection when considered independent of the provision relating to the justices of the peace to whom were given a fixed salary for all services in civil and criminal cases. The section classifying townships and fixing the compensation of the justices of the peace was considered as an indivisible act, and on the theory that one part could not be permitted to stand without the other, the decision in that case may be sustained. This view of the opinion in that case is supported by the fact that no attempt is made to point out the differences between the two cases, and the decision in the Millard Case is rested solely upon the rule of stare decisis. This is also further strengthened by the special concurring opinion of Justice Angellotti in the latter case. These cases are easily distinguishable from the case at bar. Subdivision 15 of section 4231 does not in express words classify the townships of Los Angeles county. It fixes a uniform rule of compensation by fees for all the justices of the peace in the county, with a limitation of $1,500 per annum in criminal cases, and, by a proviso, establishes salaries for the four justices of the peace provided for one of the classes of townships created by the general law. Section 4014, Pol. Code. Both the other classes created by section 4014 receive the fees allowed by law, with the same limitations in criminal cases. The Legislature in its discretion has fixed a different mode of compensation in the two classes created by the legislation for the purpose of fixing compensation, and there is nothing before this court from which it can ascertain whether the compensation of one class will be less or more than the other.

Conceding full force and effect to all that has been said since Longan v. Solano Co.. 65 Cal. 122, 3 Pac. 463, in regard to compensation being fixed in proportion to duties. rather than according to population, the same rules of interpretation of statutes are applicable. The mode and measure of compensation of public officers are both peculiarly matters of legislative discretion, and an act of the Legislature in relation thereto ought to be clearly shown to be unconstitutional before being so declared by the courts. The validity of statutes should not be determined upon mere possible contingencies. So long as the classification seems based upon conditions which suggest the propriety of the different adjustments made between between the classes, and the adjustments proceed upon intrinsic differences, and are not based upon mere arbitrary distinctions, it should be upheld. Vail v. San Diego, supra.

While the population of a township may not alone be sufficient to determine the duties required of an officer, density of populàtion has always been regarded as one of the prime considerations in ascertaining the amount of compensation to be paid a public

officer for discharging the duties of his office, and also in determining the system to be adopted in measuring such compensation. Salary is the method most generally adopted to compensate officers of large cities, and fees those of smaller cities and towns and nonurban communities. The adjustment between the classes in the act under consideration appears to proceed not only upon intrin sic differences existing between the townships of the respective classes, but is based upon well-recognized distinctions, which go directly to the duties required of such officers, and to the methods of compensation ordinarily and generally used. To sustain respondent's position here would be to hold any act unconstitutional which provided fees as the measure of compensation in one class of townships and salaries in another. We find no authority to sustain such a position.

We are of the opinion that the Legislature did not violate its legislative discretion in enacting the portion of subdivision 15 of section 4231 of the Political Code, as amended in 1907, which fixes the salary of the justices of the peace of Los Angeles township at $3,000 per annum for the personal discharge of their official duties. In arriving at this conclusion, however, we have not considered those provisions relating to salaries of clerks, office rent, supplies, etc., as affecting the compensation of the justices of the peace. These are matters which naturally suggest questions which have not been presented on this application. For instance, the question of whether or not it is competent to create special township officers for one class of townships in one county (that is, clerk of the justice's court), under a classification of such townships by population for the purpose of fixing compensation. Neither have we considered the proviso as to rent, furniture, supplies, etc., because we deem it unnecessary to the decision of the question raised on this application. The Legislature has made express provision for a salary of $3.000 for the justices of the peace in Los Angeles township, and petitioner is entitled to receive the salary of $250 per month as demanded.

The writ of mandate of this court is directed to issue commanding respondent to draw his warrant upon the county treasurer of Los Angeles county for the amount as prayed for.

We concur: ALLEN, P. J.; SHAW, J.

(5 Cal. App. 654)

PEOPLE v. COLLINS. (Cr. 88.) (Court of Appeal, First District, California. June 1, 1907.)

1. RAPE ASSAULT WITH INTENT TO COMMIT RAPE INDICTMENT AND INFORMATION-SUFFICIENCY.

Under Pen. Code. § 220, providing that every person who assaults another with intent to commit rape, etc., is punishable, etc., an

information charging that defendant unlawfully made an assault on, etc., a female under the age of 16 years, etc., with the intent to ravish, etc.. was sufficient.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 42, Rape, §§ 37-41.]

2. SAME-SUFFICIENCY OF EVIDENCE.

In a prosecution for assault with intent to commit rape, evidence examined, and held sufficient to support a conviction.

[Ed. Note. For cases in point, see Cent. Dig. vol. 42, Rape, §§ 78-82.]

3. SAME-QUESTIONS FOR JURY.

In a prosecution for assault with intent to commit rape, the intention with which defendant made the assault was a question for the jury.

[Ed. Note. For cases in point. see Cent. Dig. vol. 42, Rape, § 87.]

4. CRIMINAL LAW-APPEAL-OBJECTIONS NOT RAISED BELOW.

Where no objection is made to testimony given without the witness being sworn, the objection cannot be made for the first time on appeal.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Criminal Law, §§ 2640, 2643.]

5. SAME APPEAL — REVIEW-DISCRETION OF TRIAL COURT-WITNESSES-COMPETENCY.

The question as to the competency of a witness of tender years is one peculiarly within the discretion of the trial court.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Criminal Law, § 3062.]

6. SAME TRIAL-MISCONDUCT OF JUDGE.

Where, in a prosecution for assault with intent to commit rape, the attitude of defendant's counsel disconcerted prosecutrix, a timid child, the court properly admonished counsel to keep without the railing where prosecutrix was being examined as a witness; it not appearing that counsel could not hear the answers of the witness.

[Ed. Note. For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1522.]

Appeal from Superior Court, City and County of San Francisco; William P. Lawlor, Judge.

William H. Collins was convicted of assault with intent to commit rape, and appeals. Affirmed.

H. A. Krouse, for appellant. U. S. Webb, Atty. Gen., for the People.

*

COOPER, P. J. The information charges the defendant with assault with intent to commit rape; the charging part being as follows: "Said William H. Collins unlawfully, violently and feloniously did make an assault upon one Katie Simonetti, a female under the age of sixteen years, to wit, of the age of six years, who was not then or there the wife of said William H. Collins, with the intent then and there feloniously and by force and violence to carnally know and ravish the said Katie Simonetti and accomplish with her an act of sexual intercourse against her will, without her consent and by force, contrary to the form," etc. Defendant's counsel insists that the information is not sufficient because it does not allege that the assault was an attempt to commit a violent injury upon the person of the child so as to show an assault, as de

fined in section 240 of the Penal Code. There was no demurrer to the information, and the point is for the first time raised in this court. However, we are of the opinion that the information is sufficient. It substantially follows the language of the statute, which is: "Every person who assaults another with intent to commit rape," etc. Pen. Code, 220. It states the acts constituting the offense in ordinary and concise language and in such manner as to enable a person of common understanding to know what is intended. In such case the information is sufficient. The word "assault" as used in the statute implies force by the assailant, and resistence by the one assaulted. It has always been held in this state that, where a crime like this is charged to have been committed upon a child under 16 years of age, there can be no consent, as the law resists for her. People v. Verdegreen, 106 Cal. 215, 39 Pac. 607. 46 Am. St. Rep. 234; People v. Vann, 129 Cal. 118, 61 Pac. 776. It is not necessary for courts to draw fine analytical distinctions between an attempt to commit an offense, and an assault with intent to commit such offense. People v. Lee Kong, 95 Cal. 666, 30 Pac. 800, 17 L. R. A. 626, 29 Am. St. Rep. 165; People v. Christian, 101 Cal. 471, 35 Pac. 1043.

We have carefully examined the evidence, and find it sufficient to support the verdict. Without going into minute detail, there is evidence ten ling to show the following facts: Defendant roomed on the third floor of a lodging house at 694 Fourth street in the city of San Francisco. About 9 o'clock, or a little before, in the evening, he was seen going upstairs to his room carrying two little girls in his arms, of which the child upon whom the assault is alleged to have been made was one. He remained in the room for some 20 minutes, and came downstairs with both children in his arms. The child upon whom the assault is alleged to have been made went home, and immediately complained to her mother that the defendant had hurt her, showing the mother her private parts. The mother examined her person, and found the parts red, but did not notice any blood or bruises of any kind. The child testified that defendant got down on his knees, and took up her clothes, and put something in her private parts which hurt her: that he took down her "panties" and took his thing out of his pants; that she was scared, but did not cry. because defendant held her mouth. The police officer to whom complaint was made on the same evening visited the room of defendant at 9:30, and again at 12:30, hut did not find defendant there. On the following evening, about half-past 7, he met the defendant and asked him about the matter. and defendant denied that he had the two little girls in his room on the evening of the Sth, or that he was there himself. Defendant in his testimony admits that he had the

two little girls up in his room at the time alleged, and attempted to explain it by saying that he took them up to see his own little girl; but, as his own wife and little girl, were not there at the time, the explanation may very well have been such as not to be believed by the jury. Defendant further testified as to leaving his room on the evening of the Sth a little before 9 o'clock. and that he went with a Mr. Kaiser to Fifth and Townsend streets, and stayed there until half-past twelve that night, and that at 2 o'clock a. m. he went with Kaiser to Fourth and Bluxome streets. He does not appear to have gone to his room any more that night.

It is argued that, as the child had not been torn or penetrated, defendant could not have actually tried to have sexual intercourse with her. What his intentions were was a question particularly for the jury. The jury heard the evidence, and saw the witnesses and the defendant when he was testifying in his own behalf. The facts in this case are very similar to the facts in People v. Johnson, 131 Cal. 511, 63 Pac. 842, and that case is direct authority for the view we have taken in this case. It was there said: "The defendant assaulted the child. Being under 16 years of age, she was incapable of consenting, and therefore the assault in law was without her consent. If he had in fact had sexual intercourse with her, he would have been guilty of rape. As he did not have sexual intercourse with her, but did assault her, the question as to his intent was to be determined by all the circumstances and by the acts of defendant. The fact that defendant unbuttoned his trousers, that he took out his private parts, and that he wanted to have sexual intercourse with the child, were sufficient to justify the jury in drawing the logical rational conclusion that defendant's object was to have sexual intercourse with the child. Whether he desisted because he had satisfied his morbid depraved passions in the manner described in the evidence, or because he was afraid of an outcry from the child, or because of his impotence, are all matters of conjecture. We do not think the crime charged against this defendant, and of which he was convicted, is of such a nature that we should attempt to shield him upon imaginary reasons, or upon a theory that might possibly account for his acts as being done with the intent only to gratify an unnatural desire. We must suppose that his acts were done with the purpose and desire that would ordinarily characterize the acts of an individual of the male sex when such acts were done with one of the female sex. That a man should entice a little girl into his room, undress her, and fondle her for the purpose of gratifying an unnatural desire, and not for the purpose of having sexual intercourse, is possible. but not at all probable. The in

transcript with no apparent merit.

It is contended that the record does not show that Katie Simonetti was sworn, and further that her examination showed that she was of tender age, and incapable of receiving just impressions of the facts respecting which she was examined, or of relating them truly. The minutes of the trial do not show that she was sworn, but the bill of exceptions shows that she was examined as to her competency before being sworn, and that after such examination she "was duly sworn." Counsel, in the discharge of their duty, owe it to the court not to raise and discuss a point entirely devoid of merit, especially where the record does not sustain the statement. It is an elementary principle, supposed to be understood by every member of the bar, that if no objection were made to the testimony of a witness, and the testimony was given without the witness being sworn, the objection could not be made for the first time in this court. Here the record does not show that the witness was not sworn, nor that any objection was made to her evidence upon this ground, and the bill of exceptions shows that she was sworn.

Equally without merit is the contention that the court erred in allowing the child to testify. She was carefully examined by the judge, and her examination shows that she was capable of receiving just impressions of the facts, and knew and understood them sufficiently to give her version of them. The question as to the competency of a witness of tender years is one peculiarly within the discretion of the trial court. People v. Wilmot, 139 Cal. 103, 72 Pac. 838; People v. Craig. 111 Cal. 460, 44 Pac. 186; People v. Bradford, 1 Cal. App. 41, 81 Pac. 712.

It is claimed that "the most glaring and prejudicial error and deprivation of the right to a fair and impartial trial" occurred when the court requested the defendant's attorney not to step within the railing where the little girl was being examined as a witness, and to take his seat. From our information as contained in the record we are of opinion that the court properly admonished counsel. The child was timid, and both the counsel for the prosecution and the judge were endeavoring to get her to narrate in her own way what occurred. Defendant's counsel had interrupted time and time again with needless objections devoid of merit. Finally, when counsel arose and walked up inside the railing and near the child, the judge informed him that he had "the right to make any objection, but your activity inside the railing disconcerts the witness." It does not appear that counsel could not hear the answers of the witness. The court seems to have been very liberal with him, as he was allowed to ask questions in cross-examina

Many other questions are raised in the brief, but are as devoid of merit as those we have discussed.

The judgment and order are affirmed.

(5 Cal. App. 659) HOLMES et al. v. SALAMANCA GOLD MIN. & MILL. CO. et al. (Civ. 344.) (Court of Appeal, Second District, California. June 1, 1907.)

1. MINES AND MINERALS-RECOVERY OF UNPATENTED MINING CLAIMS-PLEADINGS-ISSUES EVIDENCE.

Where the complaint, in an action for the possession of unpatented mining claims, alleged plaintiff's ownership, possession, and right of possession at a specified date and his ouster by defendant, defendant, under a general denial, might show that the deeds under which plaintiff claimed title were bad.

The board of directors of a corporation authorized the execution of a conveyance by its secretary and president. The secretary retained possession of the deed, signed by the president and himself, until after the grantee therein brought suit for the possession of the premises described therein, when the officers acknowledged the same, and it was placed on record. It did not appear that an immediate delivery was intended, or that the grantee paid anything of value for the property. Held to justify a finding that the deed was not delivered to the grantee.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 12, Corporations, § 1784.]

4. MINES AND MINERALS-RECOVERY OF UNPATENTED MINING CLAIMS-PLEADINGS-ISSUES-EVIDENCE-ADMISSIBILITY.

Where, in an action for the possession of unpatented mining claims, plaintiff claimed ownership through conveyances executed by the original locator, and defendant pleaded the general denial, evidence of a forfeiture of the rights of the original locator or his successors, under Rev. St. U. S. § 2324 [U. S. Comp. St. 1901, p. 1427], because of the nonperformance of the annual assessment work and of defendant's entry on the premises and his relocation of the same, was admissible.

Appeal from Superior Court, San Diego County; N. H. Conklin, Judge.

Action by W. H. Holmes and others against the Salamanca Gold Mining & Milling Company and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

Powers & Holland, for appellants. Collier & Smith, Works, Lee & Works, Lawler, Allen & Van Dyke, and C. F. Smith, for respondents.