officers. Such provisions do not conflict with the constitutional declaration that the judicial power shall be vested in certain courts. People v. Metzker, 47 Cal. 524; People v. Bingham, 82 Cal. 238, 22 Pac. 1039; Carter It would follow, therefore, from the views hereina bove expressed, that the writ of mandate should issue, requiring the trustees of Burlingame to exercise their jurisdiction by proceeding to hear and determine the contest instituted by McGregor. choice or election of that candidate is true. | power of judging of the election of the city Const. art. 20, § 13; Pol. Code, §§ 1066, 1067. But it does not follow that because no candidate is declared elected, there has been no election. If one or the other has received a plurality of the legal votes, he is in fact elected, and should be so declared. We think | v. Superior Court, 138 Cal. 150, 70 Pac. 1067. the grant, in general terms, of power to determine "contested elections" or "election contests" may well be interpreted to cover the case of an attack upon the correctness of a finding that there was a tie vote, as well as that of a return that one candidate, rather than the other, has been elected. This construction, which tends to prevent the nullification of the legally expressed will of the voters through the error or misconduct of the officers charged with the conduct of the election or the canvass of the returns, finds support in a number of decisions. Erdman v. Barrett, 89 Pa. 321; Nicholls v. Barrick, 27 Colo. 432, 62 Pac. 202; Bowler v. Eisenhood, 1 S. D. 577, 48 N. W. 136, 12 L. R. A. 705; People v. Robertson, 27 Mich. 116; Shepard v. Allen (Ill.) 17 N. E. 756; Imboden v. Cully, 94 Ky. 45, 21 S. W. 339; Webster v. Gilman, 91 Ill. 324. The object of the proceeding, as is said in Erdman v. Barrett, supra, "is to determine who has received the highest number of votes legally cast. The court is to investigate the election, to correct alleged errors when they are shown to exist, and to determine the true result." Respondents place great reliance upon the consideration that the sections of the Code of Civil Procedure (1111 et seq.) providing for the contesting of certain elections in the superior court did not, prior to the enactment of section 1124a in 1907, authorize a contest where the declared result of the election was a tie. Lamb v. Webb, 151 Cal. 451, 91 Pac. 102, 646. This limitation of the scope of the proceeding in the superior court resulted from the restricted language employed in the Code sections. The only privilege given by section 1111 is to "contest the right of any person declared elected to an office. This language necessarily excludes the idea of a contest where no person has been declared elected. See Sweeny v. Adams, 141 Cal. 558, 75 Pac. 182. But this reasoning has no application to the broad and general grant of power to "determine contested elections." No good reason appears for holding that the Legislature, in enacting the municipal corporation act, used the phrase "contested elections" in the narrow sense which must be attributed to the provisions of the Code of Civil Procedure. The phraseology of the two enactments being essentially dissimilar, there is no ground for applying the rule that a statute embodying the terms of a prior statute must be read in the light of the interpretation given to such prior statute. This court has held in several instances that the Legislature may, by provisions similar to that of section 860 of the municipal The answer which purports to have been filed on behalf of two of the respondents does not, we think, raise any issue affecting the duty of the board to proceed. The averments of the answer go to the sufficiency of the verification of the contestant's statement, and to the form of the notice or citation served on Sheehan. But, since there is no statute prescribing any details of procedure to be followed by the council, that body may adopt any mode which preserves to the parties the fundamental essentials of notice and hearing. 10 Am. & Eng. Ency. of Law, 819. See Norwood v. Kenfield, 30 Cal. 393. The defects here relied upon were not such as should be held to deprive the board of the right to determine the questions raised by the statement of contest. The further fact alleged in the answer that, on May 2, 1910, the board indefinitely postponed the hearing of the contest did not destroy the jurisdiction. This action was properly taken in deference to the ruling of the superior court, which had held that it had exclusive power to determine the controversy. The board could not, if it would, deprive the contestant and the public of the right to have the contest decided in the manner provided by law. But, in fact, all that was done was to withhold action until the question of power should be finally determined. There remains, however, the question whether the jurisdiction of the trustees is exclusive, so as to oust the superior court of the jurisdiction conferred upon it by section 1124a of the Code of Civil Procedure. That section, added to the Code in 1907, authorizes a contest in the superior court where an election for an office of a county, city and county, city, or political subdivision of either has been declared by the canvassing body to have resulted in a tie. In Carter v. Superior Court, supra, we had occasion to consider the effect upon the jurisdiction of superior courts of provisions giv ing to city councils power to judge of the elections of officers. The court quoted and approved the views expressed by Judge Dillon in his work on Municipal Corporations (vol. 1, § 200) as follows: "The principle is that the jurisdiction of the court remains, unless it appears with unequivocal certainty that the Legislature intended to take it away.' It is then stated that language, such The writ of mandate to the board of trus tees will issue as prayed. The alternative writ of prohibition to the superior court is discharged, and the proceeding dismissed. or ‘of the qualifications and election of its | Clearly, then, that court cannot be said to own members,' and of those of the other of- be without jurisdiction to entertain the conficers of the corporation, will not ordinarily test. have that effect, but will be construed to afford a cumulative or primary tribunal only, not an exclusive one. A provision that no court should take cognizance of election cases by quo warranto, etc., would doubtless be sufficient to divest the jurisdiction of the judicial tribunals. And so, in general, of a provision that the council should have the sole or final power of deciding elections. 1 Dill. Mun. Corp. § 202. See, also, §§ 203, 204, 205." We concur: SHAW, J.; MELVIN, J.; HENSHAW, J. ANGELLOTTI, J. I concur in the judgment directing the issuance of a writ of mandate to the board of trustees, and dissent from the judgment denying a writ of prohibition against the superior court; my opinion being that the jurisdiction of the board of trustees of the town of Burlingame over the election contest between McGregor and Sheehan is, under our statute, exclusive. (159 Cal. 439) LUND v. SUPERIOR COURT IN AND FOR Applying these rules, it was held in the Carter Case that a provision in the Santa Rosa charter that the decision of the city council in election contests should be "final and conclusive" plainly manifested an intent to confer exclusive jurisdiction on the council. Section 860 of the municipal corporation act does not, however, contain any language of like import. It merely declares that the trustees "shall judge of all election returns and determine contested elections of all city officers." It does not appear "with unequivocal certainty," or with any degree of certainty, that the Legislature intended to divest the superior court of its jurisdiction to proceed under the sections of the Code of Civil Procedure. As was held by the District Court of Appeal for the Second appellate district in Dawson v. Superior Court, 110 Paç. 479, the jurisdiction conferred upon the city council by section 860 is not exclusive, but is concurrent with that of the superior court. Since the writ of prohibition lies only to arrest proceedings without or in excess of jurisdiction, it is clear that the relief sought against the superior court cannot be granted. That court has jurisdiction, concurrent with that of the city council, to entertain and determine the contest. We are not here called upon to consider the effect of conflicting adjudications that might be made by the two tribunals. It is claimed by the petitioner that, as the jurisdiction of the city council was first invoked, the judgment of that body would prevail. But if HENSHAW, J. Writ of review was issued this be so. the point is not one that goes to from this court under the following allegathe jurisdiction of the superior court. At tions set forth in a verified petition: Frank most, that court would be bound, upon being B. Del Carlo, a minor, through his guardian informed by proper pleading and proof that ad litem. Frank Del Carlo, duly and regua tribunal of concurrent jurisdiction had larly appointed, brought an action in the sufirst taken cognizance of the controversy, to perior court of the city and county of San stay a trial and decision until the proceed- Francisco against the United Railroads of ings first instituted should be disposed of. San Francisco, to recover damages for perThe plea in such case would be analogous to sonal injuries. The action was assigned to that of "another action pending." A fail- the department presided over by the Honorure to recognize the effect of such plea would able Frank J. Murasky. The guardian ad libe mere error, to be corrected on appeal. tem employed petitioner, an attorney at law, State v. Withrow, 108 Mo. 1, 18 S. W. 41. to prosecute the action on behalf of the If McGregor should hereafter abandon or minor. Leave to compromise the action was dismiss his contest before the trustees, there obtained from the superior court, and the acwould be nothing to prevent the determina- tion was compromised and settled for the tion of the contest in the superior court. sum of $1,300. The superior court in which *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes In Bank. Petition by P. R. Lund for certiorari against the Superior Court in and for the City and County of San Francisco, Writ disand J. V. Coffey, judge thereof. charged. Jas. P. Sweeney, for petitioner. J. K. Johnson, for respondents. Code Civ. Proc. § 1327, limits the time within which proceedings to revoke the probate of a will may be commenced to one year after the will has been admitted to probate. On appeal from an order dismissing a petition to revoke the probate of a will, the petition showed that it was filed May 7, 1909, and the order dismissing the petition recited that the will was admitted to probate by an order "duly given and made on the 4th day of May, 1908." The transcript of the record also set forth the order admitting the will to probate, the certificate of proof and facts found, and the certificates of the clerk showing the date of the filing thereof. The order admitting the will to probate declared that it was admitted on May 4, 1908, and the certificate of the judge attached to the will bears the same date; but the certificates of filing showed that both documents were filed on May 12, 1908. Held, that the evidence was sufficient to sustain an order of the court dismissing the petition for failure to file within one year court on appeal must consider as conclusive the after the will was admitted to probate, as the recital in the order appealed from as to the date admitting the will to probate. the action was thus compromised and settled |2. WILLS (§ 399*)-APPEAL RECORD-CON"allowed petitioner an attorney's fee in the FLICT IN EVIDENCE. sum of $650." Thereafter, in the probate department of the superior court, presided over by the Honorable J. V. Coffey, Frank Del Carlo was appointed guardian of the estate of the minor, and from the last-named court a citation was issued to petitioner to show cause why the judge in probate should not fix the compensation of petitioner for his services rendered in the litigation against the United Railroads above set forth. In response to this citation petitioner made answer and showing that his fee had been fixed by the Honorable Frank J. Murasky in the sum of $650, and for this reason objected to the jurisdiction of the court in probate to proceed with the hearing of the matter. Notwithstanding this, the court in probate made its order fixing petitioner's compensation in the sum of $250, and requiring him to pay over $50 of the $300 which he had collected and retained under the compromise. It was under these allegations of fact that the order was issued to determine the question of the jurisdiction of the probate court to make its order fixing the fee of petitioner, when that fee had already been previously fixed by another department having jurisdiction of the litigation, in prosecution of which the services were rendered. Cole v. Superior Court, 63 Cal. 90, 49 Am. Rep. 78. But upon the presentation here of the record it is established that no such order was made by the Honorable F. J. Murasky, and that no order at all was made by him, fixing the fee of petitioner. Moreover, that petitioner before the probate court did not make the contention that such an order had been made by the Honorable F. J. Murasky, but, to the contrary, contended that he was entitled to a fee of $650 by virtue of a written agreement made with the guardian ad litem of the minor, by which he was to receive 50 per cent. of any recovery had from the United Railroads. Under these facts no question of law is presented, and the writ is therefore discharged. We concur: SLOSS, J.; ANGELLOTTI, J.; SHAW, J.; MELVIN, J.; LORIGAN, J. (159 Cal. 425) In re PARSONS' ESTATE. (Supreme Court of California. March 7, 1911.) Where the record contains no bill of exceptions showing the evidence considered, the only question that can be considered is whether the record is sufficient to sustain the order. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2412-2426; Dec. Dig. § 544.*] [Ed. Note. For other cases, see Wills, Cent. Dig. § 868; Dec. Dig. § 399.*] 3. WILLS (§ 353*)-PROBATE PROCEEDINGSORDER ADMITTING WILL TO PROBATE-FIL ING. The filing by the clerk of an order signed by the judge is not an essential or necessary part of the making of an order admitting a mission being in the minutes of the court. will to probate; the proper record of such ad [Ed. Note. For other cases, see Wills, Cent. Dig. § 809; Dec. Dig. § 353.*] 4. WILLS ($ 260*)-PROCEEDINGS TO REVOKE PROBATE LIMITATIONS. Where a proceeding to revoke the probate of a will is begun more than one year after the will was admitted to probate, it is properly dismissed under Code Civ. Proc. § 1327, limiting the time within which such contests may be commenced to one year after the will has been admitted to probate. Dig. 8 602; Dec. Dig. § 260.*] Department 1. Appeal from Superior George Ayling filed a petition against W. E. Cashman, executor of the estate of Jemima Parsons, deceased, and others, to revoke the probate of the will of Jemima Parsons. The court dismissed the petition on motion of Cashman, and M. J. Hynes, administrator of the estate of George Ayling, deceased, appeals from the order of dismissal. Affirmed. Cullinan & Hickey, John J. O'Toole, and Darwin C. De Golia, for appellant. J. W. Dorsey, W. E. Cashman, E. J. Talbott, Lewis F. Byington, Harris & Hess, Jordan, Rowe & Brann, John A. Percy, W. H. Barrows, G. W. Haight, and Naphtaly & Freidenrich, for respondents. SHAW, J. The will of Jemima Parsons, deceased, was admitted to probate in the superior court of the city and county of San Francisco, by an order made by the court and signed by the judge thereof. W. E. Cashman | The order admitting the will to probate is in was duly appointed executor of the estate, and letters testamentary thereon were issued to him on May 12, 1908. On May 7, 1909, George Ayling, claiming to be the cousin and sole heir of the decedent, filed a contest, or petition to revoke the probate of said will. Thereafter, Cashman, as executor, and another party, as a legatee under the will, moved the court to dismiss Ayling's petition on the ground that it was filed more than one year after the will was admitted to probate, and that, consequently, under section 1327, Code of Civil Procedure, such petition or proceeding to revoke the probate of the will could not be maintained. The court granted said motion and thereupon made an order dismissing said contest and petition. Ayling afterwards died, and M. J. Hynes, having been appointed special administrator of his estate, appeals from said order of dismissal. The record contains no bill of exceptions showing the evidence taken and considered by the court upon the hearing of the motion. None was prepared or settled. The only question we can consider on this appeal, therefore, is whether or not the record, or what may be treated as the judgment roll, is sufficient to sustain the order. In re Ryer, 110 Cal. 559, 560, 42 Pac. 1082; Miller v. Lux, 100 Cal. 612, 35 Pac. 345, 639; Estate of Page, 57 Cal. 240; Estate of Isaacs, 30 Cal. 111. 1908." If the contest or petition for revocation filed by Ayling is to be deemed the initiation of the proceeding, the only papers in the transcript which we could consider are Ayling's petition, the two papers called "motions," and the order of dismissal. The petition shows that it was filed on May 7, 1909, and the order recites, or finds, that the will was admitted to probate by an order "duly given and made on the 4th day of May, Section 1327, Code of Civil Procedure, limits the time within which such contests after probate or petition for revocation may be commenced to one year after the will has been admitted to probate. Estate of Sbarboro, 63 Cal. 7; Estate of Davis, 136 Cal. 594, 69 Pac. 412. As error must be made to appear and all legal intendments are in favor of the regularity and validity of the action of the court below, it is obvious that, if this is considered as the record, the order is regular and valid. The transcript also sets forth the order admitting the will to probate and the certificate of proof and facts found, together with the certificates of the clerk showing the date of the filing thereof. The appellant contends that these papers must also be considered as a part of the record and that they show that the will was not admitted to probate until May 12, 1908, which was less than one year prior to the commencement of the contest. the usual form, is signed by the judge, and A partnership agreement provided that on dissolution the partners shall make a just and final account; that the gains and increase, either in money or in fixtures and furniture, debts, or otherwise, shall be divided between the partners, share and share alike; and that after making the division the first party should pay ond party shall transfer and assign to the first to the second party $1,000; and that the secparty all interest in the office, laboratory, furniture, and fixtures and in the good will of the business, and in all gains "of said business other than moneys earned and collected." Held, that it was the duty of the second party on the payment of the $1,000 to transfer to the first party all the property of the firm, except such moneys of the partnership as had actually been collected, and the exception did not include outstanding uncollected accounts. [Ed. Note. For other cases, see Partnership, Cent. Dig. §§ 718-725; Dec. Dig. § 311.*] 2. CONTRACTS (§ 156*)-CONSTRUCTION-GENERAL AND SPECIFIC PROVISIONS. When general and specific provisions of a contract deal with the same subject-matter, the *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes specific provisions, if inconsistent with the general ones, are to control. [Ed. Note. For other cases, see Contracts, Cent. Dig. § 737; Dec. Dig. § 156.*] 3. CONTRACTS (§ 153*)-CONSTRUCTION-CON STRUCTION AS A WHole. All parts of a contract are to be given effect, if this may be done without doing violence to the manifest intention of the parties. [Ed. Note.-For other cases, see Contracts, Cent. Dig. § 734; Dec. Dig. § 153.*] decide to terminate and after making the division hereinbefore provided, that the party of the first part will pay to the party of the second part the sum of one thousand ($1,000) dollars; and the party of the second part shall thereupon transfer and assign to the party of the first part all his interest in and to all the office and laboratory furniture and fixtures and in the good will of said business, and in all gains of said business 4. CONTRACTS (§ 152*)-CONSTRUCTION-ORDI- other than moneys earned and collected." NARY MEANING. The terms of a contract are to be construed according to the ordinary and usual acceptation of the language, unless an intent that they are to be construed otherwise plainly appears. [Ed. Note.-For other cases, see Contracts, Cent. Dig. 88 732, 733, 738; Dec. Dig. § 152.*] In Bank. Appeal from Superior Court, Los Angeles County; Frederick W. Houser, Judge. Action by H. Ford Scudder against L. A. Perce. From a judgment for plaintiff, defendant appealed to the Court of Appeals, which affirmed the judgment, and a hearing was ordered before the Supreme Court. Reversed, with directions. The controversy between the parties arises over the meaning of the language here quoted and in particular over the meaning of the words italicised. Plaintiff sued, demanding the payment of the $1,000, and insisted that he was entitled under the contract to onehalf of the moneys earned by the partnership and not collected; in other words, to one-half of the book accounts. Defendant answered, expressing his willingness to pay the $1,000, but contending that he was entitled upon this payment to all of the uncollected book accounts. The trial court construed the contract in accordance with plaintiff's contention. The Court of Appeals took the same view of it, and a hearing before Denos & Hart, for appellant. F. A. Knight, this court was ordered. for respondent. HENSHAW, J. The appeal is from the judgment on the judgment roll. The question presented is the true construction of a partnership agreement. It is to be remembered that this is not an action for the reformation of a written instrument. It is simply an action calling for a legal construction of the terms of a written instrument in the light of the circumstances surrounding its execution as found by the trial court. It is to be noted, also, that there is no question here involved of an ambiguity, latent or patent. By the terms of the contract it became the duty of the defendant upon its termination to pay to plaintiff the sum of $1,000, and upon that payment it became the duty of the plaintiff to make over to the defendant all his interest in the business and in its property, other than his interest in the moneys of the partnership which had been "earned and collected." There can be no possible doubt of the meaning of this language. It excepts from the operation of the transfer which plaintiff was to make only such moneys of the partnership as had actually been collected. As to those moneys, the agreement elsewhere provided for their equal division between the partners. Color and force for the construction adopted by the trial court is found in the language preceding, to the effect that an accounting should be had, and that "all and every of the stock and gains and increase thereof which shall appear to be remaining, either in money, goods, fixtures and furniture, debts or otherwise, shall be divided between them, share and share alike." And it is said that a provision for an accounting would be idle, and a provision that the debts (meaning debts due the partnership) should be divided equally between them would be meaningless, if it was contemplated The facts found by the court, so far as necessary to this consideration, are that defendant was a physician and surgeon with an established practice in the town of Long Beach. He entered into a partnership agreement with plaintiff, who also was a physician and surgeon, but without practice in Long Beach. By the terms of the agree ment the partnership was to continue until a given date, when it became optional with either party to terminate the relationship. Plaintiff was to pay and did pay $1,000 down on account of the purchase price for his interest in the partnership, and was to continue to pay therefor at the rate of $50 a month until the full sum of $4,000 had been paid. The provision of the partnership agree ment touching the termination of the contract is as follows: "That at the end or other sooner determination of their copartnership the said copartners, each to the other, shall and will make a true, just and final account of all things relating to their said business, and in all things truly adjust the same; that all and every of the stock and gains and increase thereof which shall appear to be remaining, either in money, goods. fixtures and furniture, debts or otherwise. shall be divided between them, share and share alike. It being distinctly understood that at the expiration of said one year, as aforesaid, in case either of the parties hereto |