[Ed. Note. For other cases, see Corporations, Cent. Dig. 88 1953-1957, 1975; Dec. Dig. 505.] 2. CORPORATIONS 505-MISNOMER-WAIVER-VALIDITY OF JUDGMENT. The New Century Zinc & Mining Company, a corporation organized under the laws of Delaware, was sued by an employé to recover damages for personal injuries. The petition and summons described the defendant as the "New Century Mining Company," and the petition alleged that it was a Kansas corporation. The summons was served upon the president of the company; an answer was filed in the name of the "New Century Mining Company" as defendant, and the cause was tried and judgment rendered against defendant. On appeal to the Supreme Court, the judgment was affirmed. In no manner was the misnomer brought to the attention of the district or the Supreme Court. Held, that failure to file a plea in abatement waived the misnomer, and that after the judgment it is too late for the defendant, or for a casualty insurance company in privity with it, to question the fact that the company was sued, or the validity of the judgment. A. M. Keene, of Ft. Scott, for appellant. W. F. Sapp and A. S. Wilson, both of Galena, for appellee. The sum PORTER, J. Ed Reynolds sued the New Century Zinc & Lead Mining Company, a corporation organized under the laws of Delaware, to recover damages for personal injuries. In his petition he described the company as the "New Century Mining Company," and alleged that it was a Kansas corporation. The summons contained the same misnomer, but was served personally upon the president of the company. The Maryland Casualty Company had issued a policy to the New Century Zinc & Lead Mining Company indemnifying it from loss by liability for injuries to its employés, and agreeing to defend at its own cost all suits brought by employés against the company. mons and papers in the Reynolds case were sent to the attorneys for the casualty company at the request of the latter company, and they filed an answer for the "New Century Mining Company" and defended the action in the district court, where Reynolds obtained a judgment. The true name of the mining company was not disclosed by any pleading filed in its behalf, but an appeal was taken to the Supreme Court by the attorneys for the casualty company; the title of the cause remaining the same. sedeas bond, however, was signed in the true name of the defendant company as principal, and also by the American Surety Company as surety. The New Century Zinc & Lead Mining Company advanced the premium for the supersedeas bond and the premium for its renewal a year later, but the casualty company reimbursed it for these payments. The judgment in Reynolds' favor was affirmed in this court at the July term, The super [Ed. Note. For other cases, see Corporations, Cent. Dig. 88 1953-1957, 1975; Dec. Dig. 1913. Reynolds v. Mining Co., 90 Kan. 208, 505.] A casualty company issued a policy indemnifying a corporation from liability for injuries to its employés and agreeing to defend all suits brought against it. It defended such an action where the corporation was sued by the wrong name and judgment was taken against the defendant. Held, after the affirmance of the judgment on appeal, it is too late for the casualty company to question the validity of the judgment, or its own liability to a surety company which signed the supersedeas bond and took an assignment of the policy as security for money advanced to satisfy the judgment. [Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 1953-1957, 1975; Dec. Dig. 505.] 133 Pac. 844. When the mandate was sent down, the New Century Zinc & Lead Mining Company satisfied the judgment and costs. It obtained the money to do this by a loan made by the American Surety Company, which had signed the supersedeas bond. In order to secure the loan or advancement of the money, it assigned to the surety company its interest in the policy of insurance issued by the American Casualty Company. That company denied any liability to the surety company on the policy, and the surety company brought this action to recover the amount of the judgment and costs in the Reynolds case. A jury returned a verdict in favor of the surety company, and judg Appeal from District Court, Cherokee ment was rendered in its favor, from which County. Action by the American Surety Company of New York, a corporation, against the Maryland Casualty Company, a corporation. From a judgment for plaintiff, defendant appeals. Affirmed. the casualty company has appealed. [1-3] We are unable to discover any reason why the judgment should not be affirmed, or any way by which the casualty company can escape liability on its policy of indemnity. The judgment in the Reynolds case was en forceable against the New Century Zinc &, the defendant. Some of the special questions Lead Mining Company notwithstanding the submitted by the defendant might well have company was sued in the wrong name. The been refused, but the jury seem to have ansummons was served upon its president, answered them properly. Their affirmative ananswer was filed, and the action contested swer to the question whether Reynolds ever on its merits as though there had been no brought an action against the New Century misnomer. If the company objected to being Zinc & Lead Mining Company was correct. sued in the wrong name, it should have filed He sued that company under the wrong a plea in abatement, or called the court's name; the company waived the misnomer attention to the mistake in some way. Fail- and defended the action. After the judgment ing to do so, or to disclose its true name, it it is too late for that company, or for the waived the misnomer. School Dist. No. 14 v. casualty company which was in privity with Griner, 8 Kan. 224; Clark v. Clark, 19 Kan. it, to question the fact that the company 522; Wilton Town Co. v. Humphrey, 15 Kan. was sued. The same may be said respecting 372. The court would have authorized an the special question whether defendant ever amendment correcting the mistake if its at- issued an indemnity policy to a corporation tention had been challenged to it. Service by the name of the New Century Mining v. Bank, 62 Kan. 857, 860, 62 Pac. 670; Company. The jury answered yes; and, unWeaver v. Young, 37 Kan. 70, 14 Pac. 458. der the court's instructions and the law as But to have the mistake corrected was not we have stated it, for every purpose connectwhat either the mining company or the cas-ed with this case the answer, though not litualty company desired. From the statement erally correct, is substantially so. The quesof counsel for defendant at the trial of the tion should not have been submitted, for no present case, it appears that the casualty one claimed that the policy was issued to a company thought some advantage could be company of that name, so it makes no difgained by defending the Reynolds action in ference how it was answered. The defendthe name under which he sued the mining ant's liability on the policy could not be af company and by concealing the misnomer. fected by any of the answers returned by the It is well-established law that where process jury. is served upon a defendant in a wrong name, and he answers in the name sued upon, a judgment against him is as binding as if rendered against him in his right name. If he fail to plead the misnomer, he waives it. 37 Cent. Dig. cc. 2607-2610, § 177, and cases cited. Although when the Reynolds judgment was affirmed the American Surety Company became liable on the supersedeas bond, its liability was that of a surety, and the mining company, the judgment debtor, was primarily liable. Officers of the surety company and of the mining company testified to the fact that the money to pay the judgment was obtained by a loan from the surety company, and that the policy was assigned and transferred as security for the loan. It made no difference whether any note was given or any charge or account made. There was no ground upon which to sustain the demurrer to the evidence. It is difficult to see how the trial court could have erred in charging the jury that the New Century Zinc & Lead Mining Company was the same thing as the New Century Mining Company. For all purposes of this action they are the same, or, putting it another way, the mining company's legal name is as stated in its charter, but it is sometimes known by the name in which it was sued and the judgment in Reynolds' favor rendered; because the fact remains that the suit was defended through the courts just as though the company had been sued in its charter name. The judgment is affirmed. All the Justices concurring. DON v. PFISTER. (S. F. 7713.) (Supreme Court of California. Feb. 2, 1916.) 1. ELECTIONS 19 - PRIMARY ELECTIONS POWER OF LEGISLATURE. Under Const. art. 2, § 22, declaring that the Legislature shall have power to enact laws relative to the election of delegates to conventions of political parties, the Legislature is authorized to make it a condition to voting in a primary election that the voter state in his affiparty with which he intends to affiliate at the davit of registration the name of the political ensuing primary election. [Ed. Note.-For other cases, see Elections, Cent. Dig. § 14; Dec. Dig. 19.] 2. ELECTIONS STRUCTION. 120-PRIMARY LAW-CON The primary act of June 16, 1913 (St. 1913, p. 1379), referred to and made the provisions of Pol. Code, § 1096, so far as consistent with the provisions of the act, applicable to primary should state in their affidavit of registration the elections. That section provided that electors name of the political party with which they intended to affiliate at the ensuing primary elec islature struck out such provisions from section. Held, that the fact that a subsequent Legtion 1096 does not affect the primary law; the provisions having been incorporated in it by reference. [Ed. Note. For other cases, see Elections, Dec. Dig. 120.] In Bank. Original application by Eugene M. Don for a writ of mandate against Henry A. Pfister. Writ issued. Thomas V. Cator, of San Francisco, for petitioner. Warren Olney, Jr., Cullinan & Hickey, Sullivan & Sullivan and Theo. J. The instructions were quite favorable to Roche, all of San Francisco, for respondent. making it a part of the primary act. The language is: "And all the provisions of section 1096 of the Political Code, so far as they are consistent with the provisions of this act, are hereby made applicable to primary elections within the meaning of this act.' ANGELLOTTI, C. J. In this matter a peremptory writ of mandate in accord with the alternative writ heretofore granted was ordered issued at the close of the oral argument, the views of the court being very briefly expressed from the bench. That the ground of the decision may be understood, it is proper to very briefly state it in writing. [1] The question presented was whether or not an elector is entitled to state in his affidavit of registration the name of the political party with which he intends to affiliate at the ensuing primary election, notwithstand-ed such a provision. We are satisfied that it ing the amendment of section 1096, Political Code, at the regular legislative session of 1915 (St. 1915, p. 285, § 6), by striking from said section the provision that an elector may state this in such affidavit. They had done the same thing in the primary act of 1911 (St. 1911, p. 769), and in a still earlier primary act when section 1096 contained no provision for statement of party affiliation, they had so expressly referred to section 1366a, Political Code, which contain must be held that it was the intent to make this section, as it then stood, in so far at least as this matter so vital to the maintenance of the act is concerned, an integral part of the primary law itself for so long as such primary law required the registration to show party affiliation. The question is one that must necessarily be decided in accord with the law as it now exists, entirely regardless of certain acts Conceding the power of the Legislature to adopted at the recent extra session of the legislate in this manner-i. e., by incorporatLegislature, which, by virtue of the refering the provisions of some other statute by endum provisions of our Constitution, are reference, as must be conceded-we have renot as yet effective, and which are still sub-maining simply the question of intent, and as Ject to be suspended until the next election to that we have already indicated our views. by the filing of a petition for a referendum The case then is simply that presented in thereon. People v. S. B. Whipple (No. 2) 47 Cal. 592, where an act provided that township assessors shall have all the powers and per It is conceded by all that the partisan portion of the primary act of June 16, 1913 (St. 1913, p. 1379), as it now exists, a valid sub-form all the duties of county assessors presisting law of the state, is practically ren- scribed by the provisions of the general revdered a nullity, if the amendment of section enue act of 1861 (St. 1863-64, p. 243), and 1096 in 1915 deprived an elector of the right wherein it was held that the subsequent rehere sought to be exercised. No one could peal of the act so referred to did not operate qualify for a party primary as required by to defeat or curtail the scope of the act in the primary act, either to sign nominating which the reference was contained, "for the petitions for candidates for party nomina-legal effect of such reference, in the first intions, or to vote at a party primary. The stance, is the same as though the act so reprimary act from beginning to end shows the ferred to had been inserted therein in exabsolute necessity for party registration intenso." This is a principle well sustained order to make it a workable system for party by the authorities, and is applicable whenprimaries at all, and learned counsel for re-ever the intent is apparent to make by refspondent frankly admitted that the express-erence another provision of law an actual ed design of its framers was that no one part of the law under consideration. Section could participate in any of the party primary elections provided for thereby unless in his affidavit of registration he had stated the name of the political party or organization with which he intended to affiliate. This was the "test and condition" provided in the primary act upon which electors might partici-inate party registration. pate in such a party primary, and that the As stated from the bench, the decision of Legislature had the right to prescribe such a test in the primary act itself cannot be doubted in view of the language of section 2, article 2, of the Constitution. [2] Under these circumstances, it is not surprising that the framers of such primary act should substantially provide therein, as they clearly had the right to do and as we think they have done, that electors should be allowed to register in such a way as to make them eligible to participate in the party primaries provided thereby. In our opinion they did this, in a way not novel at all in legislation, by referring to section 1096, Po 1096, so far as essential to the maintenance of the party primary provisions of the primary act, was thus made an actual part of such act, and the Legislature could not subsequently affect such primary act by simply amending said section 1096, so as to elim the court was based on this ground, as to which all participating agreed, although other grounds were stated by some of the justices in addition. It follows that petitioner is entitled to the relief sought, and accordingly a peremptory writ of mandate was ordered issued. I concur: SLOSS, J. SHAW, J. I concur. I want to add to the opinion of the Chief Justice another ground on which I think the decision may rest. Section 1097 as amended in 1915 contains in 'sub ed in the section before its amendment, that "the affidavit of the party must show all the facts required to be stated." This means that, if there is any fact required to be stated by any other law, the affidavit must state it, although such fact is not expressly mentioned in the form given in section 1097. And inasmuch as the primary law of 1913, in almost every section, implies that the registration shall show the party affiliation of the voter, making it necessary to the operation of the primary law, I think the above-quoted phrase of the present section 1097 necessarily means, under the law as it now stands, that the registration affidavit must show the party affiliation. HENSHAW, J. I concur in the foregoing. Viewed in the broadest and most liberal aspect, it is imperative that the writ should issue. The Constitution of this state (Const. art. 2, § 21⁄2) makes recognition of the existence of political parties, declares for a primary law and empowers the Legislature to prescribe tests controlling the right to vote at such primary. It is not necessary here to consider the full import of this constitutional provision, whether it is not in itself a guaranty of partisan primaries, through which alone under our system of laws political parties, the existence of which is certainly guaranteed by the Constitution, can alone live. It is truly said that the intent of the Legislature expressed in its acts is to be considered in interpreting those acts. No doubt can be entertained of the legislative intent in passing the primary law of 1913. It provided a complete plan for registration declaring party affiliations, though there was no compulsion upon the elector to declare such an affiliation. There was upon the statute books at that time a registration law authorizing the elector to declare his party affiliation and compelling county clerks and registrars of voters to enter such declarations of party affiliation when made, to the very legitimate end that those and those only who belonged to a political party should, at the primary designed for the selection of its candidates, have a voice in that selection. There can be no doubt but that it made this registration law as it then stood, by distinct reference, a part of itself. Equally no doubt can be entertained of the purpose of the Legislature in passing the primary law of 1915. Compelled to recognize the existence of political parties, so far as national officers are concerned, it proposed to and did do away with all party nominations for state offices. It was designed, and avowedly designed, to destroy all political parties so far as they operated upon state officers and affairs. In the accomplishment of this purpose the act of 1915 repealed the partisan primary law of 1913, and to harmonize legislation under its new proposed scheme of politics it struck out from section 1096 the provision touching the registration of the po litical party with which the elector was affiliated. Turning again to the intent of the Legislature, there is no room for doubt but that the law of 1915 was intended primarily and fundamentally to destroy party primaries and party nominations to state and county offices. Under the guaranty of the Constitution the people of the state under the initiative and the referendum become the highest legislative body in the state. Under the initiative they may pass laws beyond the power of the Legislature to modify or repeal. Under the referendum they may perform the high legislative function of vetoing an act of the Legislature. We are thus not only entitled, but it is our duty, to consider the legislative intent of the people at a referendum election quite as much as the legislative intent of the Legislature itself. They took under consideration the question as to whether or not the primary law of 1915 should be permitted to remain upon the statute books. If their vote at the polls favored it, it became the law of the state. If their vote at the polls repudiated it, their repudiation was a declaration that the primary law of 1915 should be repealed, and the primary law of 1913 should be restored to full life. Such was not only the intent, but such was the necessary effect, of the act of the sovereign people at the polls in striking from the statute books the primary law of 1915. What, then, stands in the way of the officers of the state giving effect to this plainly expressed will of the people solemnly registered at the polls? Nothing saving the specious argument that, because the people in the same referendum election did not veto the law of 1915 amending section 1096, it must be concluded that they desired that law to stand as amended, and, standing as amended, it will operate to subvert the whole partisan primary law of 1913, and thus undo everything which the people of the state thought they were doing when in terms they destroyed the primary law of 1915. But what is the broad and complete answer to this argument? It is that the people plainly designed to restore to full life the primary law of 1913; that to restore this act on the statute books required partisan registration; that the primary law of 1913 makes specific reference to and adopts as part of itself section 1096, but section 1096 as so adopted is the section as it originally stood, calling for the registration by party affiliation; even if section 1096 had been totally repealed it would, under familiar principles and under all of the authorities, be the subject of reference to determine what was meant by the primary law of 1913 and to give that meaning due effect; that, therefore, section 1096 for the purposes of the primary law of 1913, and for registration thereunder, would remain in force, even though the section had been wholly eliminated from our statute books, and that such has always Ex parte DART. (Cr. 1913.) (Supreme Court of California. Feb. 3, 1916.) 1. MUNICIPAL CORPORATIONS 611-REGULATION OF CHARITIES-POLICE POWER. The occupation of soliciting contributions for charitable purposes may be regulated by laws or ordinances providing for reasonable supervision of the persons engaged, and for the application or use of the contributions received to the purposes intended, to prevent unscrupulous persons from obtaining money or other things under the pretense that they are to be applied to charity, to prevent the wrongful diversion of such funds to other uses, and to secure them against waste. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1344-1349; Dec. Dig. 611.] port and to indorse such of them as meet actual needs of the community, attain a reasonable standard of efficiency and are so conducted as to insure the public of the wise use of the funds." The second of these ordinances prohibits begging in the public streets or places in the city and regulates the soliciting of alms and contributions for charitable purposes. It provides as follows: "Sec. 2. It shall be unlawful for any person, firm, corporation or association to solicit alms, food, clothing, money or contributions within the city of Los Angeles, without first securing a permit so to do from the Municipal Charities Commission of said city. Provided, however, that the provisions of this section shall not apply to properly accredited solicitors of established churches of said city soliciting for purely religious purposes, but it shall apply to the various institutional works carried on by said churches in like manner as other persons, firms, corporations and associations. The permit from the charities commission above referred to shall consist of a written certificate issued by the said commission certifying that the object of said solicitation is worthy and meritorious and authorizing the soliciting of gifts and donations therefor; said permits may be revoked by said commission at any time. "Sec. 3. It shall be unlawful for any person thropic organization, without first obtaining a written permit so to do from the Municipal Charities Commission; said permit shall be revocable at any time in the discretion of said commission, which may adopt such regulations regarding the soliciting and collecting of funds as its judgment may dictate, and it shall be obligatory upon the holders of such permits to abide by such rules and regulations. 2. MUNICIPAL CORPORATIONS 594-REGU-to solicit or collect for any charitable or philanLATION OF CHARITIES CONSTITUTIONAL LAW. City ordinances creating a Municipal Charities Commission and prohibiting begging in the public streets, while regulating the soliciting of contributions for charitable purposes, the last of which gave the commission arbitrary power to forbid any person from soliciting for charity regardless of his personal worth or fitness, not establishing any standard of character by which the commission should be guided in giving permits, merely requiring that it should find that the "object of said solicitation is worthy and meritorious," were unconstitutional so far as giving such arbitrary power, and in portions imposing a penalty upon any one soliciting contributions for charitable purposes without a permit and prohibiting the sale of any goods donated to charity without the solicitor first having obtained a similar permit. [Ed. Note.-For other cases see Municipal Corporations, Cent. Dig. §§ 1316-1320, 1327, 1328; Dec. Dig. 594.] In Bank. Application for writ of habeas corpus by William J. Dart against Charles E. Sebastian, Chief of Police, and Ray L. Chesebro, Police Judge, of the City of Los Angeles. Applicant discharged from custody. Gibson, Dunn & Crutcher and Edward E. Bacon, all of Los Angeles (Wm. A. Barnhill, of Los Angeles, of counsel), for petitioner. Warren L. Williams, City Prosecutor, and Samuel Barnes Smith, Deputy City Prosecutor, both of Los Angeles, opposed. "Sec. 4. It shall be unlawful for any person, firm, corporation or association to give or promote any entertainment, fair, bazaar or benefit in the name of charity or philanthropy, without first obtaining a written permit so to do, from the Municipal Charities Commission, said permit to be revocable at any time at the discretion of said commission. "Sec. 5. It shall be unlawful for any person, firm, corporation or association to solicit funds within the city of Los Angeles for any ethical, evangelistic, religious, missionary or charitable purposes without having first obtained an indorsement certificate from the Municipal Charities Commission. Provided, however, that the provisions of this section shall not apply to established and recognized churches or other religious organizations in the city of Los Angeles. "Sec. 6. It shall be unlawful for any person, firm, corporation or association to sell, or offer for sale, any clothing, household goods, or other goods, wares or merchandise which have been solicited or donated for charity or philanthropy without first obtaining a written permit so to do from the Municipal Charities Commission, said permit to be revocable at any time at the discretion of said commission." |