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 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) | thing, or as a kindly thing only, but as a "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 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. attained according to charity," declares Thomas "All perfection of the Christian life is to be 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 wrongful diversion of such funds to other uses, or to secure them against waste. Measures reasonably tending to secure these ends are unquestionably valid. [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 which the commission is to be guided in giving or withholding permits. The only thing required is that the commission shall find that the "object of said solicitation is worthy and meritorious." Persons of the highest character desiring to solicit for a worthy cause might be refused a permit for no reason except the arbitrary will of the commission. Every person has the right, under our Constitution, and perhaps without its guaranty, to solicit contributions for a worthy charitable purpose, provided he acts in good faith and honestly applies them to that purpose. The ordinances give the commission power to deprive persons of that right without cause or 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, hold consent, not only as to places, but as to persons. So that, if an applicant for such confied person, and having complied with every reasent, being in every way a competent and qualisonable condition demanded by any public interest, should, failing to obtain the requisite conbusiness, apply for redress by the judicial prosent of the supervisors to the prosecution of his cess of mandamus, to require the supervisors to consider and act upon his case, it would be a sufficient answer for them to say that the law had conferred upon them authority to withhold their assent, without reason and without responsibility. * aj * It does not prescribe a rule and conditions for the regulation of the use of property for laundry purposes, to which all similarly situated may conform. 118 U. S. 366, 368, 6 Sup. Ct. 1069, 1070 (30 L. Ed. 220). And in Los Angeles v. Hollywood, supra, the court said: "There is a wide difference between regulation and prohibition-between regulatory provisions as a condition imposed for the exercise of a lawful occupation, and making the right itself to depend upon the unrestrained will of the municipality. If the business be law * * 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 mission to engage in that business." municipality the arbitrary power to deny per The proper method of regulating a lawful business is indicated in Hewitt v. Board, su pra, as follows: privilege of practicing his profession is thus "The right of the physician to be secure in his made to depend, not upon any definition which the law furnishes him as to what shall constitute determination of the board after the statement 'grossly improbable statements,' but upon the is made and simply upon its opinion of its improbability. No definite standard is furnished by the law under this provision whereby a physician with any safety can advertise his medical business, nor is there any definite rule declared whereby after such advertisement is had the board of medical examiners shall be controlled The physician is not advised what statements he in determining its probability or improbability. may make which will not be deemed 'grossly improbable' by the board. No rule is provided whereby he can tell whether the publication he vision or not. makes will bring him within the ban of the pro * * 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 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 negli gence. [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 assum ed 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 "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 In an action for injuries against a corpomay be regulated as the lawmaking power may ration, an instruction that charges plaintiff with determine," and that, "as it could be suppressed, the burden of proving by a preponderance of the no one could be heard to complain of an ordi- evidence defendant's negligence and its proxinance regulating it because thereby special priv-mate cause of the injury is not open to objection ileges 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. 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. [Ed. Note.-For other cases, see Trial, Cent. 6. STREET RAILROADS 118-NEGLIGENCE- "If * * For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes motorman had no reason to apprehend any dan- | Angeles, was struck by an electric car belongger to said plaintiff," etc., is not open to the ing to the defendant corporation. The case objection that the words quoted left to the decision of the motorman himself, and not to the was tried before a jury, and a verdict for jury, the question of his cause for apprehension defendant was given. Plaintiff moved unof danger; for the instruction is directed to the successfully for a new trial, and she has apbelief of the jurors, and not to that of the mo- pealed from the order denying said motion. torman. [Ed. Note. For other cases, see Street Rail- 7. STREET RAILROADS 118-NEGLIGENCE 8. TRIAL 253-INSTRUCTIONS IGNORING Appellant insists that the verdict was not justified by the evidence, and she attacks numerous instructions as being so erroneous that the jurors were misled greatly to her prejudice. Error is also predicated upon the refusal of the court to give certain offered instructions. The accident occurred at or near the corner of Spring and West Ninth streets. Defendant operates cars upon double tracks extending along Ninth street and curving into Spring street, extending thence north from Ninth along Spring street. The car in question, which is about 40 feet long, had traveled south on Spring street and was turning into Ninth. It was on the right-hand track, In such case, where the instructions in gen- that is the westerly track on Spring street eral do not require the jury to find that de- and the northerly track on Ninth street. Acfendant's negligence was the sole cause of plain- cording to plaintiff's own testimony, she was tiff's dangerous position before they gave judg-going north on Spring street and she atment in her favor, a single instruction charging that she must show not only that she occupied a dangerous position, but that such position was caused by defendant's negligence, is not open to the objection that it ignored her danger from the team and wagon. [Ed. Note.-For other cases, see Trial, Cent. Dig. 8 613-623; Dec. Dig. 253.] 9. STREET RAILROADS 113-NEGLIGENCEEVIDENCE-IMMATERIALITY. In a pedestrian's action against a street railway company for injuries, where plaintiff was struck by the rear end of a car rounding a curve while she was walking between the car and a team and wagon, after she had left a place of safety on the street crossing, testimony of a traffic officer that the team and wagon had the right of way held immaterial. [Ed. Note.-For other cases, see Street Railroads, Cent. Dig. §§ 229-238; Dec. Dig. 113.] Contributory negligence may be available as a defense to a claim founded upon gross negligence. [Ed. Note.-For other cases, see Negligence, Cent. Dig. § 85; Dec. Dig. 100.] Department 2. Appeal from Superior Court, Los Angeles County; M. T. Dooling, Judge. Action by Carolyne Wood against the Los Angeles Railway Corporation. From an order denying plaintiff a new trial, she appeals. Affirmed. Tanner, Taft & Odell, Tanner, Odell, Odell & Taft, and S. W. Odell, all of Los Angeles, for appellant. Gibson, Dunn & Crutcher and Norman S. Sterry, all of Los Angeles, for respondent. MELVIN, J. Action for personal injuries by Carolyne Wood, who, while attempting to cross West Ninth street, in the city of Los tempted to cross Ninth street. Just before crossing she saw a team coming from the east, that is, from Spring street into Ninth street. She started to cross in front of the team, which was attached to a heavy wagon. Then for the first time she saw a car coming around the curve at a rapid rate. "I then turned," she testified, "and thought I would go back onto the sidewalk, and the team had gotten so it was directly back of me and was prancing. * *It was advancing perhaps a little." * When she started across the street Mrs. Wood was west of the curve and opposite the straight part of the track on Ninth street. The front end of the car passed without striking her. When she was struck the back part of the car hit her, and she was opposite the curved portion of the track. When the car approached she went east. She said: "The wagon was about stopped when I first saw the street car, with the horses just prancing, if not stopped, moving very slowly. The horses were nearly to me when I first saw the car. I was headed north. I hadn't turned at that time to walk towards the curve. The position of the wagon was back of me; south of me. east and a little south of my position when I I was going north. first saw the car. The team, I guess, was three or four feet away from me. When I first saw the car about two feet-I don't think over two feet about two feet east and three or four feet south of I was opposite the straight part of the track, west of the curve at that time. around the curve. The car was coming rather fast * I stepped back before the front end of the car got to me, towards the south. The car's front end passed me. Then I started again and turned and walked The horses were a little me. * * east towards the rear end. I don't know wheth- * * that wagon stopped or went right along. The car didn't hit the wagon at all." strike her. While it is true that courts will not hold persons suddenly placed in peril Officer Bach, the policeman in charge of to a nice selection of a place of safety nor the traffic at that place, testified: "I blew one blast of the whistle for the traffic to go east and west. That gives the West Ninth street car the right of way through there, and there was a gravel team going there with a pair of mules, and the car came down, and the front end threw the mules over one side, and they started up that side, and I looked around just in time to see this woman step in between them. When the back end come around she got caught in there; she couldn't get out. The horses kept going, and the car was going, so she didn't have any chance to get out, and I saw her roll around and fall down on the ground." He also said: "When I saw the plaintiff, she was standing on track No. B, as marked on the diagram, the track that the cars going east on Ninth and north on Spring street run. The next minute I saw her step in between the wagon and the car facing me, and the moment she stepped in between them I started right there, because I saw that she was going to be hit." The motorman testified that upon receiving the proper signal he started the car around the curve. A wagon coming from East Ninth street across Spring street and about to enter West Ninth street got within about eight feet of him as he was making the curve, and then turned out to the left. When the front end of the car rounded the curve the motorman saw Mrs. Wood on the crossing. She was on the south track, and the fender of the car passed about four feet from her. He was making the curve slowly (at the rate of about three or four miles an hour), but the car was moving faster than the wagon. Just as the car turned the curve he received a signal (three bells) and stopped the car immediately. He looked around to see what was the matter, and observed the injured woman. [1] Appellant's counsel contend that the motorman was negligent, in that, seeing the plaintiff on the curve and the prancing mules near by, he did not foresee an accident and stop his car instantly. The trouble with this contention is that he did not see her on the curve. She and he both testified that when the front end of the car passed her she was at the crossing opposite the straight track. The motorman testified that the team turned off to the left after coming near to the front end of the car at the beginning of the turn into Ninth street, and it does not appear that he saw the team or the wagon afterwards. The plaintiff, the conductor, and indeed all of the witnesses agree that when plaintiff was struck she was between the car and either the mules or the wagon. As the car was 42 feet long, and the team and wagon together less than half that length, obviously the motorman could not, without leaving his post, observe the mules nor the peril of the plaintiff just before the accident, nor could he see that Mrs. Wood had moved from her position opposite the straight tracks and had gone to a place near the curve where the rear end of the car in rounding the curve would blame them for lack of judgment under the stress of excitement and fear, nevertheless we cannot say that the jurors were not justified in believing that plaintiff was guilty of contributory negligence in running towards the prancing mules and the wagon, which was almost at rest, and placing herself between the swinging car on the curve and the team or the wagon, instead of seeking safety in the opposite direction or by standing still. [2] It nowhere appears that the motorman ever was in a position to observe that Mrs. Wood was in peril from the prancing animals. It was not the duty of the motorman to keep watch of pedestrians after the forward end of the car had passed them safely. In a case similar to this the Supreme Court of Kentucky said: "This court has in a long line of cases held that it is the duty of those in charge of a street car to keep a lookout so as to avoid injuring those who may be crossing or upon the street in been so extended as to require the employés in front of the moving car. But this rule has never charge of the car to keep a lookout at corners and curves so as to prevent others using the street from colliding with the rear end of the car." Louisville Ry. Co. v. Ray, 124 S. W. 314. The same rule substantially is stated in Riddle v. Forty-Second St., etc., Ry. Co., 173 N. Y. 331, 66 N. E. 22; Waters v. United Traction Co., 114 App. Div. 275, 99 N. Y. Sup. 763; Widmer v. West End St. Ry. Co., 158 Mass. 53, 32 N. E. 899 (a case very similar in its facts to the one at bar); Garvey v. Rhode Island Co., 26 R. I. 80, 58 Atl. 456; Hayden v. Fair Haven & W. R. Co., 76 Conn. 357, 56 Atl. 613; and South Covington, etc., Ry. Co. v. Besse, 108 S. W. 848, 16 L. R. A. (N. S.) 890. In Hamlin v. Pacific Electric Ry. Co., 150 Cal. 783, 89 Pac. 1109, this court approved an instruction involving hypothetically a state of facts somewhat analogous to those which existed in this case. The jurors were told that if, when about a block away from the point of the accident, the motorman saw the plaintiff riding his bicycle parallel with the track and far enough away for the car to pass him in safety, and if, after giving warning, the motorman caused the front end of the car to be propelled safely past plaintiff, then the motorman was not negligent if the plaintiff altered his position with reference to the track so that the back step struck him. These cases furnish ample authority, if authority were needed, to sanction the ruling of the superior court that the verdict was supported by the evidence. The rule which permits a plaintiff who has negligently assumed a place of danger to recover damages depends upon actual knowledge of the danger by the person who inflicts the injury. Bennichsen v. Market St. Ry. Co., 149 Cal. 20, 84 Pac. 420; Harrington v. Los Angeles Ry. Co., 140 Cal. 514, 74 Pac. 15, |