Judgment may determine the rights of both murrer.-Palmer vs. Woodbury, 14 Cal., p. 43. In an action for the usurpation of the office of pilot for the port of San Francisco, the complaint averred that defendants hold, use, exercise, usurp, and enjoy the office without a license, and also contained certain allegations as to the right of relator to the office. It was held: that the allegations as to relator's right could not be reached by general demurrer, the complaint being good as against the defendants; that they are not interested in the question as to the right of relator, but only in the determination of their own right to the office.Flynn vs. Abbott, 16 Cal., p. 358. In a proceeding to contest the election of District Judge, the ineligibility of the candidate receiving the highest number of votes, the defendant being next on the list, is no defense. The fact that the candidate receiving the highest number of votes at an election by the people is ineligible, does not give the office to the next highest on the list.-Saunders vs. Haynes, 13 Cal., p. 145. 805. (§ 312.) In every such action judgment may be rendered upon the right of the defendant, and also incumbent upon the right of the party so alleged to be entitled, claimant. or only upon the right of the defendant, as justice may and When rendered applicant. require. NOTE.-In an action to determine the right to an office where the relator claims the office as against the incumbent, the Court may not only determine the right of the defendant, but of the relator also; and if it determine in favor of the relator, may render judg ment that the defendant deliver to the relator the office.-People vs. Banvard, 27 Cal., p. 470. 806. (§ 313.) If the judgment be rendered upon in favor of the right of the person so alleged to be entitled, and the same be in favor of such person, he will be entitled, after taking the oath of office and executing such official bond as may be required by law, to take upon himself the execution of the office. Damages may be by 807. (§ 314.) If judgment be rendered upon the recovered right of the person so alleged to be entitled, in favor successful of such person, he may recover, by action, the damages which he may have sustained by reason of the usurpation of the office by the defendant. applicant. may several 808. (§ 315.) When several persons claim to be When entitled to the same office or franchise, one action be brought against all such persons, in order to try te their respective rights to such office or franchise. ren If defend ant found what judgment rendered against him. 809. (§ 316.) When a defendant, against whom such action has been brought, is adjudged guilty of guilty, usurping or intruding into, or unlawfully holding any to be office, franchise, or privilege, judgment must be dered that such defendant be excluded from the office, franchise, or privilege, and that he pay the costs of the action. The Court may also, in its discretion, impose upon the defendant a fine not exceeding five thousand dollars, which fine, when collected, must be paid into the Treasury of the State. See 810.-1579-4. Special not for osmoral officil "fficers Prats 187-3-4-911. Ru Mitteld. CHAPTER VI. OF ACTIONS AGAINST STEAMERS, VESSELS, AND BOATS. SECTION 813. When vessels, etc., are liable. Their liabilities con stitute liens. 814. Actions may be brought directly against such ves sels, etc. 815. Complaint must be verified. 816. Summons may be served on the master, mate, etc. 817. Plaintiff may have such vessel, etc., attached. 818. The Clerk must issue the writ of attachment. 819. Such writ must be directed to the Sheriff. Sheriff may 820. Sheriff must execute such writ without delay. 821. The owner, master, etc., may appear and defend such vessel. 822. Proceedings in actions under this Chapter. 823. After appearance attachment may, on motion, be dis charged. 824. When not discharged, such vessel, etc., may be sold at 825. Mariners and others may assert their claim for wages, 826. Proof of the claims of mariners and others. 827. Sheriff's notice of sale to contain measurement, ton- unded 1573-41 When vessels, etc., are liable. Their liabilities. 813. (§ 317.) All steamers, vessels, and boats are liable: 1. For services rendered on board at the request of, or on contract with, their respective owners, masters, agents, or consignees; 2. For supplies furnished for their use at the request of their respective owners, masters, agents, or consignees; 3. For materials furnished for their construction, repair, or equipment; 4. For their wharfage and anchorage within this State; 5. For injuries committed by them to persons or property. The seweral, causes of action constitute liens upon constitute all steamers, vessels, and boats, and have priority in their order herein enumerated, and have preference over all other demands; but such liens only continue in force for the period of one year from the time the cause of action accrued. NOTE.-1. CONSTITUTIONALITY.-Sec. 317 of the Practice Act contained six subdivisions, the fifth of which read as follows: "5th. For non-performance or mal-performance of any contract for the transportation of persons or property made by their respective owners, masters, agents, or consignees." This subdivision was omitted by the Commissioners because, in the case of The Moses Tayler, 4 Wallace U.S. Reports, p. 411, it had been held unconstitutional, as being an attempt to confer upon State Courts the power to administer a remedy for marine torts and contracts. See, also, The Hine vs. Trevor, 4 Wallace U. S. Reps., p. 556. The remaining portions of the section and of the Chapter were retained, never having been expressly held invalid. In The People vs. Steamer America, 34 Cal., in which the constitutionality of the whole section was challenged, upon the authority, among others, of the cases of The Hine vs. Trevor, and The Moses Taylor, supra, Mr. Justice Rhodes, in delivering the opinion of the Court, says: "The defendant's counsel presents the point that the statute under which the action is brought (Sec. 2 of Water Front Act of 1864, Stuts. 1863-4, p. 139) is unconstitutional. The ground taken is that this is a case of admiralty and maritime jurisdiction, and that 'as the Judiciary Act of 1789, passed in pursuance of Section 2 of Article 3 of the Constitution of the United States, provides that the District Courts * * * shall have exclusive original cognizance of all civil cases of admiralty and maritime jurisdiction,' etc., the Legislature of this State was without power to confer upon its own Courts jurisdiction of such cases. Before this point can be reached, it must be determined that this is a case of admiralty and maritime jurisdiction. It is said by Mr. Conkling (1 Conkling on Adm., p. 19) that 'the admiralty jurisdiction, in cases of contract, depends primarily upon the nature of the contract, and is limited to contracts, claims, and service purely maritime, and touching rights and duties appertaining to commerce and navigation.'-See De Lovio vs. Boit, 2 Gall., p. 398; The Thomas Jefferson, 10 Wheat., p. 428; and other cases cited. A cause of action, to be cognizable in admiralty, whether arising out of a contract, claim, service, or obligation, or liability of any kind, must relate to the business of commerce and navigation. "The defendant's counsel, in stating the facts of the case, says that the action is brought to recover wharfage while the steamer was engaged in navigating the high seas, and conveying passengers and freight to and from this port and ports in Central America.' But it does not appear from the complaint that the steamer was engaged in commerce and navigation. This fact, or one of similar import, must be stated in the pleadings, in order to make a case falling within the admiralty and maritime jurisdiction. The Court cannot take judicial notice that a vessel found at a wharf is engaged in navigating the high seas, or the navigable inland waters of the State, or is employed in trade, commerce, or navigation, of any sort or in any manner. That is a fact of jurisdictional consequence, and must be expressly alleged or be necessarily inferable from the other facts alleged. The precedents of libels in admiralty, although there is no special custom extant' with respect to their form, state this fact, and it is very generally found in all the reported cases. This fact not appearing in the case, the question presented by the defendant's counsel does not arise. "It is objected that the Harbor Commissioners have no authority to institute actions in rem in the name of or for the people. Section 2 of the Act of 1863-4 provides that the said Commissioners are hereby authorized and empowered, in the name of The People of the State of California, to institute actions at law and in equity for the possession of any wharf * the recovery of the tolls, dockage, rents, and wharfage thereof.' The words are comprehensive enough to include all the remedies that a private person could have under the same circumstances, and there are no words in the Act, and nothing in the nature of the cause of action, indicative of a restriction to certain remedies to the exclusion of others provided by law. We see no ground for holding that the Commissioners are not entitled to avail themselves of the remedy against the steamer provided by Section 317 of the Practice Act. The proceeding is similar to that adopted in The Hine vs. Trevor, 4 Wal., p. 555, which, it was said, was ‘a remedy partaking of all the essential features of an admiralty proceeding in rem.' In that case one question was, whether the remedy adopted was one falling within the clause of the ninth section of the Judiciary Act of 1789, which saves to suitors in all cases the right of a common law remedy.' It was not held that the form of the remedy adopted would make a case within the admiralty jurisdiction; but the Court having determined, from the facts of the case, that it was one of admiralty cognizance, considered that the remedy was not within the saving clause of that section. In cases not within the jurisdiction of the admiralty Courts, there can be no question that the Legislature may devise or adopt any form of remedy."-See, also, Subds. 14, 15, 16, 17, of note to Sec. 33, ante. 2. GENERALLY.-Persons engaged in navigating our rivers with boats must take every reasonable precaution to protect the property of others. Carelessness in either particular, resulting in the injury of an innocent party, will make person liable. He is bound to temper their care according to circumstances of the danger.-Gerke vs. California Steam Nav. Co., 9 Cal., p. 251. A British seaman on a British vessel, of which a British subject is master, may, when discharged by the master in a port of the United States, without any fault on the part of the seaman, sue for and recover his wages in a State Court.-Pugh vs. Gillam, 1 Cal., p. 485. If credit is given for supplies and materials furnished a vessel, the lien for the price thereof continues on the vessel for the period of one year from the time the demand becomes due.-Edgerby vs. Schooner San Lo |