on Mt. Hollywood both in a certain public park of the city of Los Angeles, known as "Griffith Park." The donor proposed that the plans for said buildings were to be furnished by him, subject to the approval of the city council and mayor, or a committee, and the structures were to be erected under the su

1. MUNICIPAL CORPORATIONS 210-PARKS -ORDINANCE ACCEPTING GIFT-VALIDITY. Los Angeles City Charter (St. 1911, p. 2051 et seq.) 118, subsecs. (c), (d), and section pervision of three citizens appointed for that 119, fully vest in the board of park commission- purpose by the mayor of the city, thereto ers the management of the park system of the authorized by ordinance. The city was to city, and of all real and personal property de- furnish the light, power, and water necessavoted to that use, as well as the erection and maintenance of all buildings thereon. Section ry in the construction of said buildings from 12 vests all legislative power of the city in the its supply of each. Rock and gravel in the council and mayor, but excepts to the board park were also to be used in the construction of park commissioners the power to accept gifts for parks on and in behalf of the city, to erect of said buildings and the necessary trails buildings thereon, and to manage and control and roadways constructed to make the same their erection and their maintenance thereafter. accessible. After the erection of said strucSection 2, subd. 16, gives the city power to re- tures they were to be managed and controlceive gifts and donations of all kinds of proper- led by the said appointees of the mayor. No ty in fee simple or in trust for charitable purposes, and do all things and acts necessary to point is made in the case as to the desirabilicarry out the purposes of such gifts and dona- ty of the acceptance of the gift, nor to the tions. Held, that ordinances of the city ac- public character of the improvements proposcepting gift to erect, in a certain park, two structures, and appoint, in accordance with the ed; nor is there any contention that the terms of the gift, three citizens to supervise conditions attached to the gift are unreasonthe erection and manage and control the struc-able, or in any way improper, save only in tures, were void. so far as they may interfere with the prerogatives of the plaintiffs as park commissioners. The city council passed an ordi

2. MUNICIPAL CORPORATIONS

992-TAXPAYERS' SUIT-ENJOINING ENFORCEMENT OF ORDINANCE.

Plaintiffs, taxpayers, citizens, and mem-nance accepting the donor's gift, and in combers of the board of park commissioners of Los pliance with the conditions thereof establishAngeles, had capacity to sue defendant commissioners claiming to act as officers of the city, under the ordinances as to said gift, from carrying out the provisions of such ordinances, and from interfering with plaintiffs' duties as park commissioners, and the remedy by injunction was proper, the ordinances requiring the furnishing, for the erection of the buildings by the city, free light, power, water, rocks, and gravel. Department 2. Appeal from Superior Court, Los Angeles County; Louis M. Myers, Judge.

Suit by Henry W. O'Melveny and others against Griffith J. Griffith and others. Judgment for defendants on demurrer, and plaintiffs appeal. Reversed.

O'Melveny, Stevens & Millikin, of Los Angeles, for appellants. Albert Lee Stephens, City Atty., and Charles S. Burnell, Asst. City Atty., both of Los Angeles, for respondents.

ed a board of three commissioners to erect and manage such structures. The respondents were appointed by the mayor as such commission, and appellants seek to enjoin them from carrying out the proposed plan, on the ground that the ordinance in question is in conflict with the charter powers of the appellants. The powers of the board of park commissioners and of the city council are derived from the charter of the city of Los Angeles and the several amendments thereto. The powers and duties of the park commission are, in part, defined as follows:

enlarging the public parks and park system of the city of Los Angeles; and

"(c) To purchase and lease property for park purposes, or for the use and benefit of the park control, care and custody of all real and persondepartment, and to have general supervision, al property owned by the city of Los Angeles and used in and about the parks or park system of said city, and generally to do any and all things that may be necessary to carry out WILBUR, J. [1] This is an appeal from a the spirit and intent of this charter in estabjudgment in favor of defendants on demur-lishing, maintaining, operating, improving and rer. Plaintiffs sue as citizens and taxpayers, and also as members of the board of park commissioners of the city of Los Angeles, to enjoin the defendants, claiming to act as officers of the city under certain ordinances, from carrying out the provisions of such or dinances and from interfering with the pow-sculptures, monuments, arches or other strucers and duties of the park commissioners. The defendant Griffith J. Griffith has offered to erect, at his own expense, for the city of Los Angeles, to become the property of the city, two structures, one a "Greek theater," costing not less than $50,000, in Vermont Canyon; the other a "Hall of Science and Observatory," costing not less than $150,000,

"(d) Subject to such ordinances as may from time to time be adopted by the council, to have and exercise charge, superintendence and control of the design, location, construction, mainteother structures, and all fountains, statues, nance and use of all buildings, pavilions and

tures in such park, pertaining to park purposes, and intended for the convenience of the public, or for the ornamentation of such parks." Section 118, subds. (c) and (d).

"The board of park commissioners may, for and on behalf of the city of Los Angeles, receive donations, legacies or bequests for the improvement or maintenance of said parks or park system, or for the acquisition of new parks, and all moneys that may be derived from

such donations, legacies or bequests, shall, unless otherwise provided by the terms of such donation, legacy or bequest, be deposited in the treasury of the city of Los Angeles, to the credit of the park fund.

erty, the board of park commissioners shall be deemed and considered a special trustee thereof for the city of Los Angeles." Section 119, Stats. 1911, p. 2051 et seq.

we are met with the express reservation of section 12 with reference to legislative powers, namely, that where "hereinafter otherAs to all such prop-wise provided" the city council have not such legislative power. Among the things "hereinafter otherwise provided" is that the board of park commissioners has power to accept gifts for the park for and on behalf of the city, to erect buildings thereon, to manage and control their erection and their maintenance thereafter. We are constrained to hold, therefore, that Mr. Griffith in his proposal to the city of Los Angeles imposes as a condition of his gift requirements which are violative of the fundamental law of the city and opposed to the wishes of the people thereof as declared in the fundamental law of said city; that the ordinances attempting to comply therewith are void as being in violation of the fundamental law of the city.

It will be observed, therefore, that the management and control of the park system of the city, and of all real and personal property devoted to that use, as well as the erection and maintenance of all buildings thereon, is very fully vested in the board of park commissioners. It is provided, with reference to the erection and control of buildings, that the same shall be "subject to such ordinances as may from time to time be enacted by the council." Section 118, subd. (d), supra. But here we do not have a case where the council sought by ordinance to direct the board of park commissioners as to the manner in which they should act in the location, maintenance, or use of buildings in a public park, but an ordinance by which it is sought to take from the board of park commissioners control over such improvements during erection and after they have been completed, and by which it is sought to make a contract with a private individual for the creation of public officers to have control thereover in accordance with his proposal for the erection and maintenance of the building. We have an acceptance by the city council for and on behalf of the city of a gift, the consideration for which moving from the city is a surrender by the city council of some of the powers of the board of park commissioners vested in them, not by the city council, a creature of the charter, but by the charter itself. That

[2] One of the points raised by the demurrer in the court below was that the plaintiffs did not have the capacity to sue. They allege that they are citizens and taxpayers. The ordinance in question required the furnishing for the erection of the buildings by the city of free light, power, water, rock, and gravel. Inasmuch, therefore, as the property of the city was to be used in the proposed buildings, and for the further reason that the members of the board of park commissioners charged with the erection of buildings in the public parks is specially interested in the question, we hold that they had the capacity to sue in this case, and that the remedy by injunction was proper. Wheeler v. Herbert, 152 Cal. 224, 92 Pac. 353.

The judgment and order sustaining the demurrer are reversed; defendants to have 30

is to say, one of the boards created by the days after notice of filing of remittitur in the

lower court in which to answer.

We concur: VICTOR E. SHAW, Judge pro tem.; MELVIN, J.

(177 Cal. 771) EMPLOYERS' LIABILITY ASSUR. CORP., LIMITED, OF LONDON, ENGLAND, v. INDUSTRIAL ACCIDENT COMMISSION. (S. F. 8517.)

(Supreme Court of California. March 20, 1918. Rehearing Denied April 16, 1918.) MASTER AND SERVANT 361–MARITIME

1.

CONTRACTS-EMPLOYER'S LIABILITY-JURIS

people seeks to take from another board, also created by the people through its charter, a power expressly vested by the people in the latter board. To justify this result two provisions of the charter are called to our attention-one, the provision that the city is given power to "receive gifts and donations of all kinds of property, in fee simple, or in trust, for charitable or other purposes; and to do all things and acts necessary to carry out the purposes of such bequests, gifts and donations, with power to manage, sell, lease, or otherwise handle and dispose of the same, in accordance with the terms of the bequest, gift or donation" (Charter, § 2, subd. 16); the other that the charter vests all the legislative power of the city, "except as hereinafter otherwise provided," in the council and mayor. If we consider that the acceptance of a gift in behalf of the city and a compliance with the terms of such gift is a legislative func- While the jurisdiction of the Industrial tion, and therefore vested in the city council, Accident Commission is limited to settlement of and that for that reason and upon that basis disputes arising under legislation contemplated by Const. art. 20, § 21, to create and enforce the city council was empowered to accept the liability of employers to compensate for inju gift and comply with the conditions thereof,ries, it may determine the question of breach

DICTION.

The exclusive maritime jurisdiction of the United States does not extend to claims arising out of work done on vessels prior to launching, and where parties stipulated facts under Workmen's Compensation Law (St. 1913, p. 279) of the state, the commission had jurisdic

tion.

2. MASTER AND SERVANT 383-INDUSTRIAL

ACCIDENT COMMISSION-POWERS.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

[1] By its petition to the commission for This court is committed to the rehearing the petitioner advanced, for the view that the language just quoted is to be first time, the contention that the claim of read in the light of a liberal interpretation. the applicant was maritime in character, and A scheme of insurance for the protection that, under the decision of the United States both of the employer and the employé has Supreme Court in Southern Pacific Co. v. Jen- been a part of virtually every workmen's sen, 244 U. S. 205, 37 Sup. Ct. 524, 61 L. Ed. compensation statute enacted in other juris1086, Ann. Cas. 1917E, 900, handed down dictions prior to the adoption of our own while the proceeding was pending, the commis- constitutional provision. To permit the emsion was without jurisdiction. A rehearing ployer to limit his obligation by procuring an was denied, and the point is again presented insurer-private or governmental-to assume here. But the record does not disclose a the burden of payment, and at the same time state of facts to which the rule invoked is to give the workman a direct right of recov

ery against the insurer, is, we think, a mode¡ plication might subsequently be made. It of defining the extent of the employer's liability, and therefore embraced within the power to "create and enforce" such liability. The insurer, assuming the risk voluntarily, is in privity with the employer, and stands in his place. An adjudication of liability under the policy is a settlement of a dispute arising out of the liability of the employer to his employé. The right of the commission to make an award against the insurer, where the validity of the policy is conceded, has never been questioned. If the commission may, in any case, make an award against one who has agreed to stand in the employer's place and protect him against claims by his employés, it must have the power to determine all questions of law and fact upon which the liability of the alleged insurance carrier depends. To hold that the mere denial of the binding force of a policy deprives the commission of jurisdiction would introduce endless and unnecessary complications and difficulties into the administration of the law.

may be, as petitioner contends, that the statement made by the New Amsterdam Company to Johnson was not evidence of the true ground which induced the cancellation. But it seems to be settled that the burden of proving the materiality of an alleged representation is upon the insurer. 2 Cooley, Briefs on Insurance, 1182. The petitioner did not meet the burden, and the commission was therefore authorized to find against it. [4] It is objected that there was no express finding that the representation was immaterial. But no such issue was presented by the answer of the insurance company. The commission found that the policy of insurance was in full force and effect at the time of the injury, and we think this finding was sufficient for all purposes. We may, for the purposes of this proceeding, agree with the petitioner that the further finding that the policy had not been validly rescinded is not material, and does not of itself dispose of the defense attempted to be set up. But the answer alleged rescission, and the fact that an unnecessary finding was made does not impair the sufficiency of the findings made. The award is affirmed.

We concur: ANGELLOTTI, C. J.; MEL VIN, J., WILBUR, J.; VICTOR E. SHAW, Judge pro tem.; RICHARDS, Judge pro tem.

(177 Cal. 781)

Ex parte WEINBERG. (Cr. 2142.) (Supreme Court of California. 1918.)

BAIL 42-MURDER-EVIDENCE.

March 21,

[3] The petitioner argues, finally, that, granting the commission's jurisdiction, the facts were such as to force the conclusion that the policy was not binding. In the application or "statement of particulars" furnished to the insurer, it was stated that no company had canceled or refused to issue workmen's compensation insurance in connection with the risk during the past three years, and that no company had insured the risk except the Hartford Company. It appeared that these statements were not true, in that a policy had been issued by the New Amsterdam Casualty Company, and had been canceled by said company shortly before application made to the petitioner. We may assume that any defense available to the insurance company as against Johnson, the employer, would be equally available against the employé or his dependents. The statement with reference to the existence or cancellation of other insurance did not constitute a warranty. It was not contained in the policy itself, nor was it in "another instrument signed by the insured and referred to in the policy, as making a part of it." Civ. Code, 2605. There was no declaration in the policy that the violation of this provision Maxwell McNutt and E. V. McKenzie, both should avoid it, and the breach therefore of San Francisco, for petitioner. C. M. Fickwould not affect the validity of the insurance ert and Louis Ferrari, both of San Francisunless the statement or representation was co, for respondent.

material. Civ. Code, § 2611.

Where petitioner was indicted for murder explosion during a preparedness parade, and upon eight counts for participating in a bomb was tried and acquitted on one count and on another ordered admitted to bail, and the prosecution urged delay of trial, and no claim was on which he was acquitted on the one count, made that there was testimony other than that held that under Const. art. 1, § 6, petitioner was entitled to bail.

In Bank. Petition by Israel Weinberg for writ of habeas corpus for admission to bail. Writ allowed.

See, also, 171 Pac. 110.,

The evidence on the subject of materiality PER CURIAM. The petitioner, against was somewhat vague. Certain correspon- whom eight indictments were returned Audence was introduced, indicating that the gust 2, 1916, for the crime of murder, and New Amsterdam Company, in notifying the who is in custody under such of the indictinsured of the cancellation of the policy is- ments as have not been dismissed and one sued by it, had attributed its action to a upon which he was tried and acquitted, inground which would probably have made the stituted this proceeding for the purpose of fact of cancellation immaterial, so far as it obtaining his admission to bail. He is almight affect another company to which ap-leged to have been one of the participants in For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

the bomb outrage in connection with the circumstances set forth above, we think the preparedness parade on July 22, 1916, de-application for bail should be granted. scribed in our opinion in the case of People It is ordered that petitioner be admitted v. Mooney, 171 Pac. 690, and by the indict- to bail upon the indictments still pending ments he was charged with the murder of against him, in the sum of $7,500 on each various persons killed thereby. He has been indictment, the bond to be approved in each in custody ever since August 2, 1916. The case by the judge of the superior court in indictments against him were assigned to whose department the same is pending. three different departments of the superior court of the city and county of San FrancisCO. As to the indictments pending in two of the departments he was, after his trial

and acquittal on one of the indictments here

inafter noted, ordered admitted to bail by one of the judges thereof. In one of these departments the indictments there pending against him have since been dismissed by the court. In the other of these departments the district attorney declares himself not ready to proceed immediately with the trial of the charge against him. In the third department admission to bail is denied, and it is claimed by petitioner that he is refused a speedy trial therein. Petitioner has been regularly tried upon one of the indictments, and the trial resulted, on November 27, 1917, in a verdict of not guilty. A transcript of the testimony given on this trial was submitted to us upon this application. No claim was made that the district attorney has any other testimony upon which he expects to rely upon another trial.

(177 Cal. 755)

SEYMOUR v. SALSBERRY et al. (S. F. 7906.) (Supreme Court of California. March 19, 1918.) 1. CORPORATIONS 123(1, 4) — TRANSFER OF STOCK-PLEDGES.

A pledgee of corporate stock is not bound to give notice of transfer to himself to the corporation, and transfer upon the books of the corporation is not essential to create a valid pledge. 2. CORPORATIONS 128(10) PLEDGES-EN

FORCEMENT.

Where a valid pledge of corporate stock has been made the pledgee may claim the property so pledged from third persons by suit unless such persons establish a superior right thereto. 3. CORPORATIONS ←123(24)—Pledged STOCK -EVIDENCE.

Evidence held to show that defendant, as agent of pledgor and at his request, bid in such stock when sold for assessment, holding same in trust for pledgor.

4. PRINCIPAL AND AGENT ~~69(7) — RIGHTS OF AGENT AND PRINCIPAL.

An agent, bidding in his principal's corporate stock sold for assessment, could acquire no right superior to that of his principal. 5. CORPORATIONS 169 ASSESSMENTS ON

STOCK-SALE.

Under the Constitution all persons accused of crime are entitled to bail, "unless for capital offenses when the proof is evident or the presumption great." Const. art. 1, § 6. The provision has been interpreted in this court to mean that bail should be refused in a capital case when the evidence is such that a verdict of guilty based upon it would be sustained by a court. Ex parte Troia, 64 Cal. 152, 28 Pac. 231; Ex parte Curtis, 92 Cal. 188, 28 Pac. 223. In the cases just cited the application for bail was made before the accused had been put on trial before a jury. Where, however, there has been a trial, upon which the jury has disagreed, this is a circumstance which, while not conclu- both of San Francisco, for respondent. sive, is entitled to weight in determining whether the prisoner should be admitted to bail. 3 Am. & Eng. Ency. of Law (2d Ed.) 670; Ex parte McLaughlin, 41 Cal. 220, 10 Am. Rep. 272; Alexander's Petition, 59 Mo. 598, 21 Am. Rep. 393. More persuasive, though still not controlling, is the acquittal of the prisoner on a trial of one of several indictments where, as is conceded to be the case here, all are founded upon a single transaction. State v. Summons, 19 Ohio, 139. See, also, Green v. Commonwealth, 11 Leigh (Va.) 677.

Evidence held to show that defendant had

purchased corporate stock under sale to enforce

an assessment on the stock, under an understanding preventing competitive bids and in bad faith, for much less than real value.

Department 2. Appeal from Superior Court, City and County of San Francisco; George E. Crothers, Judge.

Action by George N. Seymour against John Salsberry and others. Judgment for plaintiff, and defendant named appeals. Affirmed. J. P. O'Brien, of San Francisco, for appellant. Willard P. Smith and B. B. Blake,

Upon a consideration of the evidence which has been presented against the petitioner, coupled with the fact that a verdict of acquittal has been rendered by a trial jury upon that evidence, and in view of the other

MELVIN, J. Defendant Salsberry appeals from an adverse judgment and from an order denying his motion for a new trial.

Defendant Sward, against whom judgment by default was entered, owned on November 27, 1909, 10,000 shares of the stock of the International Eucalyptus Association of California standing in his name upon the books of that corporation. On that day he pledged the stock by indorsement and delivery of the certificates, representing it to plaintiff Seymour as security for the payment of a note of even date. By the terms of the indorsement upon the certificates the transaction was nominally a sale, assignment, and transfer of the stock. No transfer of the stock to plaintiff was made on the cor