It is apparent that the importance of her testimony did not require that this witness should have been singled out for this attack. The form of the question indicates that it was intended to gratify some personal feeling of the client, and we cannot refrain from suggesting to attorneys that such a motive is not sufficient to justify them in asking questions of this character. We think it our duty to not only sustain the ruling of the trial court, but commend it to the attention of attorneys for their future guidance.

Judgment and order affirmed.

Allen, P. J., and Shaw, J., concurred.

[Civ. No. 496. First Appellate District.-August 16, 1909.] S. BLOOM, Appellant, v. MICHIGAN SALMON MINING COMPANY, a Foreign Corporation, and J. D. GRANT, Respondents.

CHANGE OF PLACE OF TRIAL-APPEAL-MOTION BY CODEFENDANT TO DISMISS-SETTLEMENT INSUFFICIENT SHOWING.-Upon appeal from an order changing the place of trial at the request of one defendant alone, where the corporation codefendant moved to dismiss the appeal upon the ground that the plaintiff and the other defendant had agreed to settle the litigation between themselves, and that the question had become moot, such motion cannot be granted, where there is no showing that the agreement was consummated by payment, but it appears that the corporation was to be released, and that the plaintiff appealing is seeking relief against both defendants.

ID.-MERITS NOT TO BE CONSIDERED.-The merits of the appeal cannot be considered upon a motion to dismiss the appeal; nor can it be decided upon the motion to dismiss whether a settlement between the other parties would of itself be effectual to release the corporation defendant, which is not a party to the settlement.

ID. ERRONEOUS ORDER-APPLICATION BY ONE DEFENDANT RESIDENCE of Codefendant NOT SHOWN.-An order changing the place of trial upon the application of one defendant alone, without any showing in the record as to the residence of a codefendant against whom relief is demanded is erroneous, and must be reversed.

ID.-BURDEN UPON Moving PARTY.-The burden was upon the moving party to show that none of the defendants are residents of the county in which the action was brought.

ID.-RESIDENCE OF CORPORATION-PRINCIPAL PLACE OF BUSINESS.-The principal place of business of a corporation is the residence within the meaning of the code as to change of the place of trial.

APPEAL from an order of the Superior Court of the City and County of San Francisco changing the place of trial. James M. Troutt, Judge.

The facts are stated in the opinion of the court.

S. Bloom, and L. W. Juilliard, for Appellant.

James M. Allen, and James C. Sims, for Respondents.

COOPER, P. J.-This action was brought for the purpose of dissolving a copartnership alleged to exist between the plaintiff and the defendant Grant, said partnership being in regard to the ownership, working and development of the Red Hill and Cash hydraulic placer mines, situated in Siski you county, and to have it adjudged that the contract made by said Grant with the defendant corporation (under which the corporation is alleged to be in possession of the mining property, and claiming to own the same, and is alleged to be working same) is void as to this plaintiff, and that the said corporation be required to account for the value of all the minerals extracted by it from the said mine. The complaint prays that a receiver be appointed, and that it be decreed that the contract made between defendant Grant and the defendant corporation is void.

On motion of defendant Grant, accompanied by a demand and affidavit of merits as to Grant, the place of trial of the action was ordered changed from the city and county of San Francisco to the county of Sonoma, that being the county in which said Grant resides and in which he resided at the time of the commencement of the action. This appeal is from the order changing the place of trial to Sonoma county. Defendant Michigan Salmon Mining Company moved to dismiss the appeal, on the ground that the appeal now presents only a moot question, because the plaintiff has set

tled with defendant Grant. The notice is accompanied by a copy of an agreement made between plaintiff and defendant Grant, dated December 10, 1906, by the terms of which it appears that upon the payment of the sum of $375 to plaintiff by defendant Grant at the times and in the manner specified by said contract, the plaintiff will release defendant Grant from all claims and demands of every kind, including the matters embraced in said litigation.

It is not made to appear, by affidavit or otherwise, that defendant Grant has ever paid to the plaintiff the said $375, or any part thereof. It is further expressly stated in said agreement that the plaintiff reserves all rights against the defendant corporation. If the complaint is true, the plaintiff is entitled to relief against the corporation. But be this as it may, we cannot decide the merits of the controversy, nor as to whether or not the settlement with Grant would of itself release the defendant corporation, on this motion to dismiss the appeal. The plaintiff is seeking relief against both defendants. The allegations in regard to the agreement of settlement are as to one defendant. The motion is therefore denied.

As to the order changing the place of trial, the record does not show anything as to the place of residence or the principal place of business of the defendant corporation; nor is there any affidavit of merits made by or on behalf of said corporation. So far as the record shows, the defendant corporation may have no defense to the said action on its merits. The burden was upon the moving party to show that none of the defendants are residents of the county in which the action was brought. (Hearne v. De Young, 111 Cal. 376, [43 Pac. 1108].) The principal place of business of a corporation is its residence within the meaning of the code as to the change of place of trial. (Jenkins v. California Stage Co., 22 Cal. 538; Cohn v. Central Pacific R. R. Co., 71 Cal. 489, [12 Pac. 498]; McSherry v. Penn. C. G. M. Co., 97 Cal. 641, [32 Pac. 711].)

The order is therefore reversed.

Kerrigan, J., and Hall, J., concurred.

[Crim. No. 186. First Appellate District.-August 20, 1909.]

Ex Parte G. L. GREY, on Habeas Corpus.

HABEAS CORPUS-IMPRISONMENT UNDER VOID CITY ORDINANCE-DELE GATION OF POWER IN CONFLICT WITH GENERAL LAW.-An ordinance of an incorporated city which delegates power to the board of police commissioners and fire commissioners of the city to appoint a board of plumbing examiners to examine and issue licenses to plumbers is void, as being in conflict with the general law of the state imposing that duty upon the board of health of any incorporated city or city and county in the state; and one who is imprisoned under such void ordinance upon a complaint not charging nor intimating that the defendant has not procured such license under the general law is entitled to be discharged upon habeas corpus.

ID. SILENCE OF CHARTER-IMPLIED POLICE POWER NOT TO BE DELEGATED -SUBJECTION TO GENERAL LAWS.-Where the charter of the city grants no express power to appoint plumbing examiners, if such power exists, it can only be implied under the general power of the city to enforce police and sanitary regulations which cannot be delegated to any other body or persons, but which is subject to the operations of general laws inconsistent with its exercise,

PETITION for discharge upon writ of habeas corpus, from imprisonment under an ordinance of the city of San Jose.

The facts are stated in the opinion of the court.

Frank H. Benson, for Petitioner.

Cleveland L. Dam, and George Appell, for Respondent.

COOPER, P. J.-The petitioner is imprisoned under a complaint charging him with unlawfully practicing the trade of plumbing in the city of San Jose, in the county of Santa Clara, without first having obtained a certificate from the board of plumbing examiners authorizing him so to do, he being a journeyman plumber, contrary to the provisions of an ordinance of said city in relation to plumbing and drainage, a copy of which ordinance is set forth in the petition.

It is claimed that the ordinance, in so far as it provides for the appointment of a board of plumbing examiners, and the issuance of a certificate by them, and the fixing of a

penalty for the violation of its terms in this regard, is in conflict with the general laws of the state, and therefore void. This is the only question in the case which we deem it necessary to decide.

The ordinance provides as follows: "It shall be unlawful for any master plumber or journeyman plumber to practice his trade in the city of San Jose without first obtaining a certificate from the Board of Plumbing Examiners. To obtain such certificate it shall be necessary for each plumber to pass a satisfactory examination before the said Board of Plumbing Examiners, showing his knowledge and ability to do work as a master plumber or journeyman plumber in accordance with the latest and most approved method of sanitary plumbing. Said Board of Plumbing Examiners shall consist of the plumbing inspector and six other members, to be appointed by the Board of Police and Fire Commissioners, to be submitted. They shall all be practical plumbers, three to be journeymen and three to be employers, and each of the members of said board to pass an examination under the supervision of the Board of Police and Fire Commissioners. No person shall be eligible to an appointment on the Board of Plumbing Examiners until he shall have first passed a satisfactory examination the same as provided in this section for obtaining a certificate for practicing plumbing."

It will be seen that under the said ordinance the board of plumbing examiners shall consist of the plumbing inspector, and six other members to be appointed by the board of police and fire commissioners. This is the board of plumbing examiners authorized by the ordinance to give the certificate, and the failure to obtain such certificate is the omission which it is claimed constitutes a crime, and for which the prisoner is held in custody.

If the charter of the city of San Jose confers upon the mayor and common council the power to appoint board of plumbing examiners, such power is by implication under the general power to enforce police or sanitary regulations, for there is no language in the charter directly granting such power. If we were to hold that the mayor and common council have such implied power under the charter, it is clear that such power cannot be delegated to the board of