dise which had been solicited and donated for charity and philanthropy, without first obtaining or having a written permit so to do from the Municipal Charities Commission." The following facts appear without controversy: The Salvation Army is a religious organization founded on and believing in the teachings of Christ. It has been established for 50 years. It has its churches and charitable organizations throughout the United States and other countries. Profoundly impressed with the Founder's sympathy for the poor and afflicted and with His teachings that, "Now abideth faith, hope and charity, these three, but the greatest of these is charity," and, "Now the end of the commandment is charity out of a pure heart," it has made its special field of religious work the relief of the destitute and the rescue of society's outcasts. It has found that it cannot lead the spirit of the weary and heavy burdened without first ministering to his physical necessities. While "man does not live by bread only," he cannot live at all without bread. Therefore the charitable organizations of the Salvation Army are vital, integral parts of its religious life and work. For 25 years it has prosecuted its religious and charitable work in the city of Los Angeles. It there maintains an "Industrial Home," where men out of employment are given food and lodging without charge, but are required, for their own self-respect and to the end that mere professional beggary be not fostered, to perform such labor as is within their power, being paid the value thereof. It maintains a "Rescue Home and Maternity Hospital," in which, without charge, food, lodgings, and hospital service are afforded needy married women and unfortunate girls. It maintains a "Young Woman's Boarding House," giving for an extremely low price to homeless girls and women clean, wholesome food and lodging and helpful moral influences. It maintains four other hotels and lodging houses where the destitute are housed and homed free of charge and where but a small charge is exacted from those able to pay. An average of 27 persons per night are given shelter in these hotels free of all charge. It also maintains nine stores where secondhand clothing, furniture, rags, paper, and junk of various kinds, contributed by the charitable, are sold at low prices. In these stores and in the renovatory work necessary to make many contributed articles salable, employment is given to the needy, who thus become selfsustaining and self-respecting. In the years of its labors the Salvation Army has acquired properties of much value in Los Angeles, all of which are used for one or another of the described purposes. It has alleviated suffering, and given relief and employment in thousands of cases. Its books of financial account are and always have been open to the inspection and examination of its con has ever voiced any complaint touching the honesty and efficiency of the Army's administrative work. After its creation, the charities commission, claiming the power so to do under the aforesaid ordinances, on or about the 6th day of October, 1913, demanded, in writing, of the Salvation Army, that it should, as a condition precedent to obtaining the indorsement or permit of the commission for carrying on or soliciting contributions for any of its above described charitable work in said city, be governed by a local board of managers, or trustees, all of whom should be residents of the city of Los Angeles, and representative Los Angeles citizens, and that all the property of the Salvation Army in the city should be conveyed to and held by such local board, and that the financial work of the Salvation Army in the city should be conducted by such local board; that no budgets for funds should be prepared and enforced on the Los Angeles workers for any purpose other than Los Angeles work; and that no funds should be sent out of Los Angeles for the use of the Salvation Army elsewhere, except by the direction of such local board, or of the Municipal Charities Commission; and that Christmas offerings, self-denial, harvest festival, and like accustomed contributions of the Salvation Army should not be used except for local purposes; and that all proceeds derived by the Salvation Army from the conduct of its aforesaid institutions in Los Angeles (whether self-sustaining or not) should be used exclusively for the extension of its work in the city, and not be subject to assessment by territorial (i. e., national) officers of the Salvation Army. Next, the charities commission exacted that title to all property of the Salvation Army in Los Angeles should be vested in a corporation, and this was done. Thereafter the Salvation Army and its corporation petitioned the charities commission for a permit allowing it to continue its charities, and its petition was denied. Always desirous of yielding obedience to the law, and of "rendering to Cæsar the things that are Cæsar's," the Salvation Army endeavored to comply with the exactions of the charities commission, but was unable to comply with some of them without impairing its efficiency and integrity as an organized society for religio-charitable work. Failing to secure the permit, the Salvation Army continued this work. The petitioner is one of its officers. In the performance of his duties as such officer, and not otherwise, he has been subjected to these arrests and charged with these crimes. In setting forth the foregoing facts we are not unmindful of the limitations put on our inquiry under this writ. The validity of these ordinances is to be determined from their provisions, and the question of their validity or invalidity is all that concerns us here. Nevertheless, and assuming for the ate zone, between a law imposing reasonable regulations to effectuate these ends on all such charitable institutions, and a law which makes the right to solicit at all, and thus the right of a given charity to exist dependent on the arbitrary will of a charities commission. Again, let us illustrate. Re spondent in its brief thus defines the power of the charities commission: facts are highly instructive as illustrating cuss the distinction, as broad as the temperthe extent of the power conferred and the manner of its exercise. Here is a great and living charity doing good to thousands of the needy and heavy-laden of Los Angeles, struck dead because it does not make over the management of its affairs to a local board of "representative citizens" and cannot agree that it will dispense the bounty which it receives exclusively for local purposes. Charity is not only to begin at home, but to end at home saving as under "permit" it may be suffered to go abroad. The quality of Mercy (and so necessarily of Charity), we are told -"is not strained; It droppeth as the gentle rain from Heaven Upon the place beneath." But in Los Angeles it is to be strained and drop as from a sprinkling pot in the guiding hand of the charities commission. But this exemplification of the use of the power is not, of course, an argument against the existence of the power itself. Conceding the existence of the power, if in any instance an illegal exercise of it has been made, that fact will constitute a defense to a prosecution, but will not be effective to destroy the validity of the grant of power itself. The basic question still remains: May a private charitable association, order, or organization be denied the right to fulfill the purposes of its existence saving under a "permit" from the authorities? We here use the term "private charity" as meaning one not supported in whole or in part by state or municipal funds. Over the latter class manifestly the power of regulation and control is great, if not plenary. "The Municipal Charities Commission is delegated power to indorse (which means grant alone they are entitled to live) such charitable permits to charitable institutions under which institutions as meet the actual needs of the community, attain a reasonable standard of efficiency and are so conducted as to insure the public in the wise use of funds." In This language taken from the first of the ordinances above quoted sounds reasonable. But as interpreted by the Municipal Charities Commission, what does it mean? their own language it is this: Such a charity is "one that will execute every trust for charity with the least possible delay, with the greatest possible efficiency and with the least possible deduction for expense." Here is a mark set, and that mark is the absolute perfection of human endeavor. No tolerance, no charity is shown by this commission of charities, for any human effort, however self-sacrificing and efficient, that does not attain human perfection. Charities in Los Angeles must reach a pitch of perfection unattained by any other human institution, or in the view of the Municipal Charities Commission they are unfit to live. But let us eliminate from consideration these constructions put by the Municipal Charities Commission on their own powers, which are but delegated powers, and meet the question of the existence of this power at its source. Can the municipal authorities of a city arbitrarily say what person or what institution may or may not engage in charitable work dependent wholly or in part upon voluntary contributions from the public? Unhesitatingly we answer that this cannot be done, that it constitutes an attempt to use the police power in an arbitrary, unreasonable, and oppressive manner. It necessarily contains an assertion of the power to prohibit and suppress vocations and occupations which, entirely aside from their religious character, are from a worldly point of view in and of themselves not only harmless but positively beneficial to humanity. The power to pass reasonable regulations in such a case bears no relationship to the power to prohibit or suppress. Yick Wo v. Hopkins, 118 U. S. 356, 6 Sup. Ct. 1064, 30 L. Ed. 220; Los Angeles v. Hollywood Cemetery Ass'n, 124 Cal. 344, 57 Pac. 153, 71 Am. St. Rep. 75; In re Johnston, 137 Cal. 115, 69 Pac. 973; Sonora v. Curtin, 137 Cal. 583, 70 Pac. 674. Certain features of these ordinances at once strike the reader. Money may be freely sent abroad by any "established church" for the uplift of the soul of the Senegambian, and this is very well; but no penny can be sent to Belgium, to Poland, to Serbia to still the wailing of the children or allay the anguish of the women except under a "permit" from the charities commission. Nay, more, in the city of Los Angeles itself its needy childhood goes unfed and unclothed, its dependent womanhood unprotected and uncared for by organized charities except they have a "permit." Surely here, if anywhere, is "The organized charity, scrimped and iced In the name of a cautious, statistical Christ." Respondent argues that charitable institutions soliciting contributions from the general public thus secure public trust funds, and that it is quite within governmental power's for the state or its municipal agencies to regulate the collection and disposition of such trust funds. It is freely conceded, indeed it is proclaimed, that reasonable regulations may be adopted touching and to a limited extent controlling the operation of charitable institutions dependent in whole or in part on public beneficence. But re- Such charitable work is not to be conspondent fails to perceive or at least to dis- founded with beggary, which imports per sonal gain. Most often those who devote themselves to such charities live lives of self-denial and self-abnegation for the sake of others. And the utmost limit of reasonable regulation in the matter is reached by acts protecting the public from charlatans and imposters, insuring knowledge on the part of the donors of the purposes to which their contributions may be put, coupled with adequate safeguards against malversation as to the funds received. But this falls far short of the law here under review, which permits such charitable work to be carried on only by (again to quote respondent) "trustees satisfactory to the Municipal Charities Commission." But in further support of the argument that the charities commission or the municipal council may thus forbid a man from devoting his life to this form of self-denial and good works, it is said that neither the Constitution of the United States nor the Constitution of this state guarantees him the right so to do as they guarantee him the free exercise of his religion. They do not. Neither do they guarantee to a man the right to love, to show mercy, to forgive his enemies, or to walk in the path of rectitude. The existence of some human rights is taken for granted in both of those august instruments. We have heard one Chief Executive of this nation declare that he construed the Constitution as conferring on his department all powers not expressly withheld. The construction has not as yet met with favor from the jurisconsults. As little accord can be given to a construction which denies to the individual any right not ex pressly reserved and preserved to him. But if driven to authority to support this declaration, we can at least point out that the Declaration of Independence recognizes the right of all mankind to pursue happiness. When that pursuit takes the innocent and admirable form of effort to better the lot of the poor and oppressed, whether happiness be found solely in the consciousness of the doing of kindly deeds, or whether it be found in the conviction that one is thereby following the precepts of a Divine Teacher, in either case it lies not within the ordained powers of our government, national, state, or municipal, to say that such a vocation shall not be followed, such a life shall not be led. So far we have dealt with the question in what, for lack of a better word, we may term its secular aspect only. From this point of view our remarks and conclusion apply equally to all charities, whether temporal or religious. But there is another aspect of the question clearly presented and as clearly demanding consideration. This is the religious aspect. The petition shows that the charities of the Salvation Army are a vital part of its religious life work. One need not write as a theologian in expressing as we do the most profound veneration for religion as embodying the highest ethical concepts of a people and as satisfying their spiritual yearning for a life finer than this earthly one. The two religions exercising the most potent influence in shaping the material and spiritual destinies of the white-skinned races are the Jewish and the Christian. To these, as to all others, perfect freedom of exercise is constitutionally guaranteed. In both of these religions charity is the central word. It is enjoined, not as a good thing, or a wise thing, or as a kindly thing only, but as a fundamental part of the religion itself. Says the Jewish faith: "On three things the world is stayed; on the Thorah (the law) and on worship and on the bestowal of kindness." "Now the end of the commandment is charity out of a pure heart," says Paul to Timothy. "Charity is the scope of all God's commands," preaches Chrysostom. "All perfection of the Christian life is to be attained according to charity," declares Thomas Aquinas. Does it need more, does it need so much, to show that in these religions the bestowal of charity, the devotion of life to charity, are a part of the religion itself? And does it demand discussion to establish so plain a truth as that touching religion there is a doubtful zone which legislation should be most reluctant to enter? The founders of the nation recognized it when they placed the great guaranty of religious liberty in the Constitution of a free people, and it is for every court to see that that liberty is not encroached upon and that freedom gnawed and impaired by any experimental legislation however well meant. So when legislation does enter that uncertain domain, the fact that it is there must bring to it condemnation. In accordance with the dictate of the Constitution itself, the doubt will be resolved in favor of religious liberty. And it will be found better in the long run that the free exercise of religion be preserved in its integrity, better for the nation, better for charity itself which owes so much to religion, even if the efficiency of religious charities be not up to the standard of perfection set by the Municipal Charities Commission. If under that standard 75 cents of every dollar would go to the objects of charity, while under the less efficient methods in vogue but 50 cents of each dollar actually reaches the beneficiaries, it is not to be forgotten that there will be many millions fewer of these dollars to be distributed in charity if the activities of the religious are hampered, thwarted, and stayed. Wherefore the prisoner is discharged from custody. We concur: MELVIN, J.; LORIGAN, J. SHAW, J. (concurring). [1] The occupation of soliciting contributions to charitable purposes is clearly so far subject to the police power that it may be regulated by laws or ordinances providing for a reasonable supervision over the persons engaged therein and for the application and use of the contributions received to the purposes intended, in order to prevent unscrupulous persons from obtaining money or other things under the pretense that they were to be applied to charity, and to prevent the wrong ful diversion of such funds to other uses, or to secure them against waste. Measures reasonably tending to secure these ends are unquestionably valid. hold consent, not only as to places, but as to and conditions for the regulation of the use of "There is a wide difference between regulation ** * ful, and having no injurious tendency, they cannot say who shall and who shall not exercise the right itself. Under the guise of regulating a business, the municipality cannot make prohibition possible by committing to the officers of the municipality the arbitrary power to deny permission to engage in that business." The proper method of regulating a lawful business is indicated in Hewitt v. Board, supra, as follows: [2] If the ordinances in question here were reasonably appropriate for the attainment of these objects, there could be no valid objection to them based on the ground that they deprived persons of liberty or unduly restricted them in the pursuit of happiness. But they do not merely empower the Municipal Charities Commission to inquire or examine into the character of persons soliciting for charity and withhold permits from all who do not come within fixed standards of character and fitness. They give the commission absolute and arbitrary power to forbid any person from soliciting for charity, regardless of his personal character, worth, or fitness. No standard of character or fitness is set by "The right of the physician to be secure in his which the commission is to be guided in giv-privilege of practicing his profession is thus ing or withholding permits. The only thing made to depend, not upon any definition which required is that the commission shall find the law furnishes him as to what shall constitute that the "object of said solicitation is worthy determination of the board after the statement 'grossly improbable statements,' but upon the and meritorious." Persons of the highest is made and simply upon its opinion of its imcharacter desiring to solicit for a worthy probability. No definite standard is furnished cause might be refused a permit for no rea- by the law under this provision whereby a physician with any safety can advertise his medical son except the arbitrary will of the commis- business, nor is there any definite rule declared sion. Every person has the right, under our whereby after such advertisement is had the Constitution, and perhaps without its guaran- board of medical examiners shall be controlled ty, to solicit contributions for a worthy char- The physician is not advised what statements he in determining its probability or improbability, itable purpose, provided he acts in good faith may make which will not be deemed 'grossly and honestly applies them to that purpose. improbable' by the board. No rule is provided The ordinances give the commission power to whereby he can tell whether the publication he deprive persons of that right without cause vision or not. makes will bring him within the ban of the proor reason. To the extent that they give this arbitrary power they are contrary to the Constitution and void. They come within the principles stated by the Supreme Court of the United States in Yick Wo v. Hopkins, 118 U. S. 356, 6 Sup. Ct. 1064, 30 L. Ed. 220, and by this court in Ex parte Sing Lee, 96 Cal. 359, 31 Pac. 245, 24 L. R. A. 195, 31 Am. St. Rep. 218; Los Angeles v. Hollywood Ass'n, 124 Cal. 349, 57 Pac. 153, 71 Am. St. Rep. 75; Schaezlein v. Cabaniss, 135 Cal. 469, 67 Pac. 755, 56 L. R. A. 733, 87 Am. St. Rep. 122; and Hewitt v. Board, 148 Cal. 593, 84 Pac. 39, 3 L. R. A. (N. S.) 896, 113 Am. St. Rep. 315, 7 Ann. Cas. 750. In the Yick Wo Case, referring to ordinances prohibiting laundries in wooden buildings except by permission from the, board of supervisors, the court said: "They seem intended to confer, and actually do confer, not a discretion to be exercised upon a consideration of the circumstances of each case, * 串 * If a physician's license is to be revoked for 'grossly improbable statements,' if he is to be thereby deprived of his means of livelihood, of his right to practice a profession which it has taken him years of study and a large expenditure of money to qualify himself for, on the ground that he has made 'grossly improbable statements' in advertising his medical business, it is requisite that the statute authorizing such revocation define what shall constitute such statements so that the physician may know in advance the penalty he incurs in R. A. (N. S.) 896, 113 Am. St. Rep. 315, 7 Ann. making them." 148 Cal. 595, 84 Pac. 41, 3 L. Cas. 750. Other methods of regulation may also be allowable; but a law or ordinance by or under which a lawful occupation, in itself, when properly conducted, in no wise injurious to persons, property, or the public interest, may be absolutely prohibited at the dictation of any official body without other cause than its own will or desire, is beyond the legislative power, and to that extent void. There is a class of cases upon which the stated principles, such, for example, as Ex parte Fiske, 72 Cal. 127, 13 Pac. 310, In re Flaherty, 105 Cal. 558, 38 Pac. 981, 27 L. R. A. 529, and Barbier v. Connolly, 113 U. S. 27, 5 Sup. Ct. 357, 28 L. Ed. 923. It will be found, however, that these cases relate to things which in their nature are or may be injurious to public health, safety, comfort, or welfare, and that they do not infringe upon the principles above stated with regard to the regulation of occupations which are both lawful and innocuous. In the Flaherty Case the distinction is stated. After holding that an ordinance forbidding the beating of drums upon the streets without a permit from the president of the board of trustees was valid, the court, referring to other cases which seemed to conflict with the decision, and which are similar to the case at bar, said: "But upon closer examination they will be found to go upon a distinction or principle, whether sound or not, that is not applicable to the case at bar. They are based upon the theory that the lawful inherent rights of men cannot be entirely suppressed or destroyed by statute or ordinance, but can only be regulated, and that all regulations of such rights must be uniform." 105 Cal. 565, 38 Pac. 983, 27 L. R. A. 529. And again: "At all events, the cases referred to deal with a right. But the proposition that a man has a natural, ingrained, inviolate, common-law, or constitutional right to beat a drum on the traveled streets of a city has no foundation in reason or authority. As therefore it is not a right that may not be entirely suppressed, it may be regulated as the lawmaking power may determine," and that, "as it could be suppressed, no one could be heard to complain of an ordinance regulating it because thereby special privileges accrued to particular persons.' 105 Cal. 566, 38 Pac. 983, 27 L. R. A. 529. The distinction between cases like Ex parte Fiske and the present case is that in this case the right which the commission has power absolutely to take away is a lawful and innocent occupation which the Legislature cannot entirely suppress and as to which its functions are merely to regulate its conduct and prevent abuses. There are other cases relating to ordinances which, after prohibiting certain things, delegate to some officer or board the power to decide whether or not a given person or subject comes within the terms of the prohibition. These are not in conflict with the principles above stated, nor are they applicable to this case. For these reasons, I am of the opinion that the portion of the ordinance in question imposing a penalty upon any one who solicits contributions for charitable purposes without a permit from the commission is void. The section of the ordinance prohibiting the sale of any goods donated to charity without first obtaining a similar permit is invalid for like reasons. I concur in the judgment discharging the prisoner. We concur: ANGELLOTTI, C. J.; SLOSS, J.; LAWLOR, J. WOOD v. LOS ANGELES RY. CORP. (L. A. 3649.) (Supreme Court of California. Feb. 2, 1916.) 1. STREET RAILROADS 98- NEGLIGENCE CONTRIBUTORY NEGLIGENCE LEAVING PLACE OF SAFETY. Plaintiff, while crossing a street at a crossing, passed in front of a team and wagon, and when beyond them saw a street car having the right of way coming towards her, rounding a curve, and stepped back. The front end of the car passed her in safety as it got beyond the curve, and she then walked between the car and the wagon, and was hit by the rear end of Held the car as it was rounding the curve. will not be held for lack of judgment under exthat, while persons suddenly placed in danger citement and fear, nevertheless plaintiff's conduct in walking towards the danger instead of seeking safety in the opposite direction or standing still justified a finding of contributory negligence. [Ed. Note.-For other cases, see Street Railroads, Cent. Dig. §§ 204-208; Dec. Dig. 98.] 2. STREET RAILROADS 103-NEGLIGENCEMOTORMAN'S KNOWLEDGE OF DANGER. Under such circumstances it was not the duty of the motorman to watch plaintiff after the front end of the car passed safely beyond her and the team, and therefore he could not be held to have knowledge of the danger assumed by her in walking between the team and the car toward the rear end. [Ed. Note. For other cases, see Street Railroads, Cent. Dig. § 219; Dec. Dig. 103.] 3. NEGLIGENCE DEN OF PROOF. 138-INSTRUCTIONS-BUR In an action for injuries against a corporation, an instruction that charges plaintiff with the burden of proving by a preponderance of the evidence defendant's negligence and its proximate cause of the injury is not open to objection that it admits of an inference that such negligence must be proven by acts other than those of defendant's servants. [Ed. Note.-For other cases, see Negligence, Cent. Dig. §§ 354-370; Dec. Dig. 138.] 4. TRIAL 296-INSTRUCTIONS AS A WHOLE -PROXIMATE CAUSE. Where an instruction does not sufficiently charge on the subject of the proximate cause of an injury, the deficiency is correct if included in subsequent instructions. [Ed. Note.-For other cases, see Trial. Cent. Dig. §§ 705–713, 715, 716, 718; Dec.Dig. 296.] 5. TRIAL 191-INSTRUCTIONS-ASSUMPTION OF FACTS TO THE REAR." railroad company, it appearing that the front In an action for injuries against a street end of the car after it had rounded a curve passed safely beyond plaintiff, who was standing on the street crossing between the car and the motorman was not bound to assume that a team and wagon, an instruction charging that the wagon "to the rear" of the car would be carelessly driven to plaintiff's danger is not open to objection that it assumed that the wagon merely that the wagon was towards the rear of was behind the car; the instruction meaning the car. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 420-431, 435; Dec. Dig. 191. For other definitions, see Words and Phrases, First Series, Rear.] 6. STREET RAILROADS 118-NEGLIGENCEAPPREHENSION OF DANGER-INSTRUCTIONS. In such action an instruction charging that, "If * 串 you find * that the said * |