ARTICLE

XIV. COLLEGES, INCORPORATION OF.

292. How college may be incorporated.

293. Application for incorporation.
294. When to be declared incorporated.

295. Property of college to vest in trustees.

ARTICLE

296. Trustees, number of; same, quorum.

297. Style of incorporation.

298. Powers of trustees.

299. Diploma, effect of.

Act of April 20, 1850, to provide for the Incorporation of Colleges.

ARTICLE 292, Sec. 1. Any college may be incorporated in this state, according to the provisions of this act, by the state board of education, consisting of the governor, superintendent of public instruction and surveyor-general.-[Am. April 13, 1855, R. S. 1850, 273, C. L. 162.

ART. 293, Sec. 2. The founders and contributors of any proposed college within this state, shall make to the state board of education, application in writing, requesting that college may be incorporated, specifying the first trustees, and name by which the corporation is to be called.-[Am. April 13, 1855, R. S. 1850, 273, C. L. 162.

ART. 294, Sec. 3. In case the state board of education or a majority thereof, shall be satisfied that the proposed college has property to the amount of twenty thousand dollars, and that the proposed trustees are capable men, then the said board of education, or a majority thereof, shall by an instrument under their hands, declare the college incorporated under the provisions of this act, by the name specified in the application; and the application, together with the declaration of the board, or a majority thereof, shall be recorded in the office of the secretary of state.-[Am. April 13, 1855, R. S. St. 1850, 273, C. L. 162.

ART. 295, Sec. 4. Immediately after recording the same, the property and funds of such college shall be vested in the trustees so nominated, for the use and benefit of the college.

ART. 296, Sec. 5. The trustees of every such college shall not be more than twenty-four, nor less than twelve in number; and seven trustees of any college shall constitute a quorum for the transaction of business.

ART. 297, Sec. 6. The trustees of every such college shall be a corporation, known by the name and style of the president and board of trustees of college; and by that name they and their successors shall be known in law, have perpetual succession, sue and be sued, in all courts and in all actions whatsoever. ART. 298, Sec. 7. The trustees shall have power, 1. To elect by ballot, annually, one of their number as president of the board. 2. Upon the death, removal out of this state, or other vacancy in the office of any trustee, to elect another in his place. 3. To elect additional trustees, provided the whole number elected shall never exceed twenty-four at any one time. 4. To declare vacant the seat of any trustee who shall absent himself from eight succeeding meetings of the board. 5. To receive and hold, by purchase, gift. or grant, any real or personal property; provided, that the yearly income of the college shall not exceed its necessary yearly expenses ten thousand dollars. 6. To sell, mortgage, lease, and otherwise use and dispose of such property, in such manner as they shall deem most conducive to the prosperity of the college. 7. To direct and prescribe the course of study and discipline to be observed in the college. 8. To appoint a president of the college, who shall hold his office during good behavior. 9. To appoint such professors, tutors, and other officers as they shall deem necessary, who, unless employed under a special contract, shall hold their offices during the pleasure of the trustees. 10. To remove from office the president, and every professor, tutor, or other officer employed, upon a complaint in writing, by any member of the board of trustees, stating the misbehavior in office, incapacity, immoral conduct of the person or persons sought to be removed, and upon due examination and proof

of such complaint. 11. To grant such literary honors as are usually granted by any university, college, or seminary of learning in the United States, and in testimony thereof, to give suitable diplomas under their seal, and the signature of such officers of the college as they shall deem expedient. 12. To fix the salaries of the president, professors, and other officers of the college. 13. To make all by-laws and ordinances necessary and proper to carry into effect the preceding powers, and necessary to advance the interests of the college; provided, that no by-laws or ordinances shall conflict with the constitution or laws of the United States or of this state.

ART. 299, Sec. 8. Every diploma granted by such trustees shall entitle the possessor to all the immunities which, by usage or statute, are allowed to possessors of similar diplomas, granted by any university, college, or seminary of learning in the United States.

See Corporation.

JUDICIAL DECISIONS.

In an application for an order to incorporate a college, it is necessary that subscriptions of real estate should define the boundaries or situation of the lands proposed to be given. Matter of California College, 1 Cal. 329.

Act of March 20, 1850, empowering the Governor to Appoint Commissioners of Deeds.

ARTICLE 300, Sec. 1. The governor may, when in his judgment it may be necessary, appoint in each of the United States one or more commissioners, to continue in office four years, unless sooner removed by the governor. Every such commissioner shall have power to administer oaths and to take depositions and affidavits to be used in this state; and also to take the acknowledgment or proof of any deed or other instrument to be recorded in this state.

ART. 301, Sec. 2. All oaths administered by said commissioners, all depositions. and affidavits taken by them, and all acknowledgments and proofs aforesaid, certified by them, shall have the same force and effect in law, to all intents and purposes, as if done and certified by any recorder or other officer within this state authorized by law to perform such acts.

ART. 302, Sec. 3. Before any commissioner, appointed as aforesaid, shall proceed to perform any of the duties of his office, he shall take and subscribe an oath, before any officer duly authorized to administer oaths in the state for which such commissioner may be appointed, that he will faithfully perform and discharge all the duties of his office; which oath shall be filed in the office of secretary of state of California within six months after the taking the same.

ART. 303, Sec. 4. It is hereby made the duty of the secretary of state to furnish each commissioner, appointed as aforesaid, with a copy of this act.

ART. 304, Sec. 5. The names of all persons appointed commissioners under this act shall be published at least three times in some weekly newspaper printed in this state.

XVI. CONSTABLE.

ARTICLE

ARTICLE

305. Constable, how to qualify; bond, penalty of and 310. Penalty for neglecting to pay over money.

where filed.

306. Duties of.

307. Laws governing action of.

308. Penalty for failing to return process.

309. Penalty for neglecting to levy and sell.

311. Penalty for failing to perform any official act.

312. To be conservator of the peace.

313. Penalty for willful negligence, etc.

314. Forbidden to practice as attorney, etc.

Act of April 19, 1850, Prescribing the Duties of Constables.

ARTICLE 305, Sec. 1. Every person elected to the office of constable shall take the oath of office, and give bond, to be approved by the county judge of his county, conditioned for the faithful performance of the duties of his office. The bond shall be in such penalty as the county judge may direct, and, after approval, shall be filed and recorded in the office of the county clerk.

ART. 306, Sec. 2. The constable shall attend the courts of justices of the peace of his township, whenever required, and within his township shall execute all lawful orders made by them, and execute and return all writs and process directed to him by such justice, or any lawful authority; and shall serve within his township and return all notices placed in his hand for service relating to any suit or proceeding in any court of this state.

ART. 307, Sec. 3. In regard to the execution, service and return of orders, writs, process and papers, where there are no positive provisions of law prescribing his duties, he shall be governed by the laws relating to sheriffs, so far as they are applicable.

ART. 308, Sec. 4. For failing or refusing to return, as required by law, any writ or process issued by a justice of the peace, or any paper connected with any suit or proceeding before such justice, he shall be liable to pay the party at whose instance the suit or process has issued, or for whom the paper is to be served, the sum of fifty dollars, to be recovered of him and his sureties, by motion, before a justice of the peace of his township-five days' notice of the motion having been given.

ART. 309, Sec. 5. If any constable to whom any writ of execution shall have been delivered shall neglect or refuse, after being required by the creditor, his agent or attorney, to levy upon or sell any property of the defendant which is liable to be levied upon and sold, he and the sureties on his bond shall be liable to the creditor for the value of such property.

ART. 310, Sec. 6. If any constable shall neglect or refuse to pay over any money in his hands which he has collected or received in his official capacity, when demanded by the person entitled thereto, the amount thereof, with thirty-five per cent. damages, and interest at the rate of ten per cent. per month from the time of demand, may be recovered from such constable and his sureties, as provided in the fourth section of this act.

ART. 311, Sec. 7. For any official act, or any omission to perform any duty required of him by law, the constable shall be liable on his bond to any person injured.

ART. 312, Sec. 8. Constables shall be conservators of the peace within their respective townships.

ART. 313, Sec. 9. Any constable who shall be guilty of any manifest and willful negligence, or shall in the administration or under color of his office be guilty of any oppression or wrongful act, shall, upon conviction, be fined in a sum not exceeding two thousand dollars.

ART. 314, Sec. 10. No constable shall be permitted to practice as an attorney or counselor at law before the court of any justice of the peace of his township.

For violating the provisions of this section, he shall be deemed guilty of a misdemeanor.

See Sheriff, Office, Crimes and Punishments.

JUDICIAL DECISIONS

A CONSTABLE, like any other ministerial officer, has the right to appoint as many deputies as he pleases, and the deputy is not guilty of any trespass in levying by virtue of legal process in his hands. Taylor v. Brown, 4 Cal. 188.

328. Seal of office, how procured and form; how used; 336. Taxes, in what currency collected; controller to

Act of Jan. 19, 1850, concerning the Office of Controller.

ARTICLE 315, Sec. 1. The controller shall be commissioned by the governor, and shall reside and keep his office at the seat of government. He shall not absent himself from the state without leave of absence obtained from the legislature. ART. 316, Sec. 2. Before entering upon the duties of his office, he shall give bond to the state, with such sureties as shall be approved by the governor, in the penal sum of fifty thousand dollars, conditioned for the true and faithful performance of the duties enjoined by law, and for the safe delivery to his successor in office of all books, papers, documents, maps, vouchers, and other effects belonging or appertaining to the office of controller.

ART. 317, Sec. 3. He shall digest, prepare and report to the governor, on the fifteenth day of December annually, to be laid before the legislature at the commencement of each regular session, a complete statement of the condition of the revenues, and the amount of the expenditures for the preceding fiscal year; a full and detailed statement of the public debt, estimate of the revenues and expenditures for the succeeding fiscal year; a tabular statement, showing separately the whole amount of each appropriation of money made by law, the amount paid under the same, and the balance unexpended; a tabular statement, showing the amount of revenue chargeable to each county for the preceding year; the aggregate amount of each object of taxation, together with the tax due on the same; and shall report such plans as he may deem expedient for the support of the public credit, for promoting frugality and economy in the public offices, for lessening

the public expenses, and generally for the better management and more perfect understanding of the fiscal affairs of the state.

ART. 318, Sec. 4. It shall be the duty of the controller to keep an account between the state and state treasury, between the state and the United States, and between the state and every other state, sovereignty, officer, or person with whom the state may have dealings; and he shall have power to administer all oaths or affirmations required or allowed by law, in matters touching the duties of his office.

ART. 319, Sec. 5. He shall audit all claims against the state which by law are specifically authorized to be audited and paid out of the treasury, excepting only such claims as may be expressly required by law to be examined and adjusted by other officers or persons, and no claims for services rendered the state, or any officer thereof, or for advances made to, or on account of, the state or any officer thereof, shall be audited or allowed, unless such services or advances be specially authorized and the compensation fixed by law.-[Am. April 13, 1854, R. S. St. 1850, 47, C. L. 72. (1)

ART. 320, Sec. 6. He shall draw all warrants upon the treasury for money, and each warrant shall express in the body thereof the particular fund out of which the same is to be paid, and he shall also indorse upon each warrant by him so drawn the specific appropriation applicable to the payment of the same, except only in cases otherwise specially provided by law, and no warrant shall be drawn on the treasury except there be an unexhausted specific appropriation by law to meet the same. The controller shall keep an accurate account of all warrants by him drawn on the treasury, and a separate account under the head of each specific appropriation, and in such a form and manner as at all times to show the unexpended balance of each appropriation. (2)

ART. 321, Sec. 7. He shall direct prosecutions in the name of the state for all official delinquencies in relation to the assessment, collection and payment of the revenue, against all persons who by any means become possessed of public money or property, and fail to pay over or deliver the same, and against all debtors of

the state.

ART. 322, Sec. 8. He shall give information in writing to either house of the legislature, whenever required, upon any subject relating to the fiscal affairs of the state, or touching any duty of his office, and shall perform all such other duties not enumerated in this act, as may be required by law.

ART. 323, Sec. 9. He shall, when he goes out of office, deliver to his successor all books, files, letters, papers, accounts and other things belonging to his office. ART. 324, Sec. 10. All the books, papers, files, letters and transactions pertaining to the office of controller, shall be open to the inspection of the governor, to the inspection of committees of the legislature, or either branch thereof, or that of any other person authorized by law.

ART. 325, Sec. 11. In case of the death, sickness, absence from the state, removal from office, or impeachment of the controller, unless such absence or disability shall occur within six months of the close of the term for which he shall have been elected, the governor shall immediately issue his proclamation, appointing a day for the election of a controller, to fill the office for the remainder of the unexpired term; which election shall be held at the places, and in the manner prescribed by law. (3)

ART. 326, Sec. 12. In case of such vacancy, absence or disability, the governor shall make an appointment of some suitable person to perform the duties of the office of the controller until a successor shall be elected and qualified, or until such absence or disability shall cease; and such person shall take the oath, and give the bond required of the controller, and shall receive the same compensation

(1) See Treasurer of State.

(2) There must be a fund specifically appropriated by law to meet the warrants before they can be drawn. Redding v. Bell, 4 Cal. 333. (3) See Office, Art. 2883.