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read "must," it should not be so read when taken in connection with the other instructions of the court, in which the jury was distinctly told that circumstances of mitigation, excuse or justification need not be proved by a preponderance of evidence. Such instructions were contrary to the ruling of a majority of this court in the case of People v. Hong Ah Duck, 61 Cal. 387; but as the error was in favor of defendant he had no cause of complaint. The jury was told over and over again that the presumption of law was that the defendant was innocent until his guilt was established by evidence; that he was entitled to the benefit of any and all reasonable doubts, and could not be convicted of any degree of crime unless the jury was fully convinced by the evidence in the case of his guilt, beyond and to the exclusion of all reasonable doubt. We see no grounds for saying that the jury was instructed to the prejudice of the defendant in regard to the character or degree of evidence necessary to warrant his conviction.

The other objection urged by counsel is answered by the case of People v. Herbert, 61 Cal. 544.

Judgment affirmed.

We concur: MCKEE, J.; MYRICK, J.; MCKINSTRY, J.; SHARPSTEIN, J.; THORNTON, J.; MORRISON, C. J.

(65 Cal. 122)

LOGAN v. SOLANO Co. (No. 9,134.)

Filed March 22, 1884.

An act entitled "An act to establish a uniform system of county and township governments," providing, among other things, for the compensation of county officers according to population, does not infringe the article of the constitution requiring every statute to embrace a single subject, and that subject to be expressed

in the title.

The constitutional prohibition against local or special laws affecting the salary of any officer, does not render an act invalid which divides the counties of the state into 48 classes, according to population, and prescribes the salaries of the county offices within each class, though there are but 52 counties in the state.

In bank.

J. F. Wendell, for appellant.

A. J. Buckles, for respondent.

Ross, J. Among the provisions of the present constitution of this state are the following:

"The legislature shall establish a system of county governments which shall be uniform throughout the state; and by general laws shall provide for township organization, under which any county may organize whenever a majority of the qualified electors of such county, voting at a general election, shall so determine; and whenever a county shall adopt township organization, the assessment and collection of the revenue shall be made, and the business of such county and the local affairs of the several townships therein, shall be managed and transacted in the manner prescribed by such general laws." Article 11, § 4.

"The legislature, by general and uniform laws, shall provide for the election or appointment, in the several counties, of boards of supervisors, sheriffs, county clerks, district attorneys, and such other county, township, and municipal officers as public convenience may require, and shall prescribe their duties and fix their terms of office. It shall regulate the compensation of all such officers in proportion to duties, and for this purpose may classify the counties by population." Id. § 5.

It is also declared that the legislature shall not pass local or special laws "regulating county and township business, or the election of county and township officers," or "creating offices, or prescribing the powers and duties of officers in counties, cities, townships, election or school districts," or "affecting the fees or salary of any officer." Article 4, § 25.

In March, 1883, the legislature passed an act entitled "An act to establish a uniform system of county and township governments. St. 1883, p. 299. Among the provisions of the act is one classifying the counties by population for the purpose of regulating the compensation of the officers, and the compensation of the officers of the counties as thus classified is by the act fixed. The validity of the act is assailed on several grounds. In the first place, it is said to violate that provision of the constitution which provides that every act shall embrace but one subject, which subject shall be expressed in its title. As will have been noticed, the title is "An act to establish a uniform system of county and township governments." This title, we think, fairly expresses the subject of the act, and we are further of opinion that the act embraces but one subject. In another case under submission, in which the validity of this act is also in question, it is said in support of the point now under consideration that the body of the act treats of two subjects, because provision is therein made for county governments, and also for the division of such counties into townships, and for the election and compensation of justices of the peace and constables for such townships. But the creation of townships within a county, with the appropriate officers, like the division of the county into school, road, and supervisorial districts, with their appropriate officers, is but a part of the county government. This is an altogether different thing from the "township organization" spoken of in section 4 of article 11 of the constitution. A bare perusal of that provision makes this sufficiently plain, for it is there in terms declared that under the township organization that the legislature is

directed to provide for, any county may organize whenever a majority of the qualified electors of such county, voting at a general election, shall so determine; and, further, that whenever a county shall adopt such township organization, the assessment and collection of the revenue shall be made, and the business of such county, and the local affairs of the several townships therein, shall be managed and transacted in the manner prescribed by the general laws providing for the ownship organization. See, also, Ex parte Wall, 48 Cal. 318.

On the part of the appellant, it is contended further that those provisions of the act of March 14, 1883, relating to fees and salaries of officers, come within the inhibition of that provision of the constitution declaring that the legislature shall not pass local or special aws affecting the fees or salary of any officer. The provisions in question are a part of the general law establishing a uniform system of county and township governments. For the establishing and carrying on of such governments, officers are essential, and for such officers compensation must be provided. By the fifth section of article 11 of the constitution, the legislature is cominanded to provide for the election or appointment in the several counties of all necessary officers, to prescribe their duties, fix their terms of office, and rogulate their compensation. Certainly, there is no more appropriate place for such provision and regulation than in the act establishing the government of which the officers form part. The constitution further expressly provides that the compensation of all such officers shall be regulated in proportion to duties, and, for the purpose of so regulating the compensation, the legislature is authorized to classify the counties by population. The act in question, for the purpose of regulating the compensation of the various officers authorized by its provisions, establishes 48 classes, whereas there are in the state but 52 counties; and it is insisted that in establishing so many classes. the legislature in some way violated that provision of the constitution authorizing the classification of counties in proportion to population. Counsel argues this proposition as if the constitutional provision was that the legislature should regulate the compensation of the officers of the various counties, townships, etc., in accordance with its classification by population. But this is not at all so. The requirement is that the compensation shall be regulated in proportion to duties, and as a means of doing that the legislature is authorized to classify the counties by population. How can the courts say how many classes it is necessary for the legislature to establish in order to carry out this command of the constitution? If they can say that 48 classes are too many, they can say that 38 or 28 are. The proper determination of that question of necessity depends upon a variety of considerations, which are for the legislature and not for the courts. authority existing, it is not for us to say that it was improperly exercised. The legislature is a co-ordinate branch of the state governv.3,no.6-30

The

ment, and the courts should never declare its acts invalid unless clearly in conflict with the constitution. We see no suen conflict in this case.

Judgment affirmed.

We concur: MYRICK, J.; McKINSTRY, J.; SHARPSTEIN, J.; MORRISON, C. J.

(65 Cal. 121)

PEOPLE v. WOODS. (No. 12,924.)

Filed March 22, 1884.

In an indictment for larceny, a description of the person from whom the property is alleged to have been stolen, is sufficient, if a name is given by which he is well known, even though his real name is different.

'Department 1.

The Attorney General, for appellant.

Leander Quint, for respondent.

Ross, J. Defendant was indicted and tried for the larceny of $105, the personal property of one Henry Williams. On the trial the person to whom the money was alleged to have belonged was examined as a witness, and testified, among other things, that his name was Henry Williams. In due, course the defendant was convicted, and afterwards moved for a new trial, on the ground of newly-discovered evidence, the alleged newly-discovered evidence consisting in the fact that the owner of the stolen property was not Henry Williams, but was Henry Williams Brocken. In support of this motion the person spoken of as Henry Williams was permitted to testify in the court below that his true name was Henry Williams Brocken, and that he was so known by his friends and associates. He admitted, however, that he sometimes used the name Henry Williams in correspondence. And further: "I gave the name Henry Williams instead of Henry Williams Brocken, because I did not wish my own name to go into print." The court below granted defendant a new trial. In this there was error. The testimony on which the order was based, itself shows that the person from whom the money was stolen was sometimes known as Henry Williams, and so held himself out. There was no doubt as to his identity.

Order reversed.

We concur: MCKEE, J.; McKINSTRY, J.

(65 Cal. 345)

BAYLY V. MUEHE.

Filed December 27, 1883.

In an action against an administrator or executor to foreclose a mortgage, the heirs of the deceased mortgagor are not necessary parties.

THORNTON, J., dissenting.

Appeal from superior court for city and county of San Francisco.

F. J. Castlehun, for appellant.

Stetson & Houghton, for respondent.

1

BY THE COURT. For the reasons given in the opinion delivered when this case was before department 1 of this court, the judgment is reversed, and cause remanded.

MYRICK, J., concurred, except so far as approval of Cunningham v. Ashley, 45 Cal. 485, may be applied.

THORNTON, J., dissenting. I dissent. It has been held in this state, at least since Beckett v. Selover, 7 Cal. 215, was decided, that under the system of law prevailing with us the real and personal estate of a person dying intestate vests in the heir, subject to the lien of the administrator for the payment of debts and expenses of administration. I know of no statute and no decision changing the rule as above stated, viz., that the title vests in the heir. Legislation subsequent to this decision may have changed the right of an administrator from a lien, though I am not prepared to say that the administrator's right

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Ross, J. One Baker owned a tract of land which he mortgaged to one Livermore, and then died intestate, leaving surviving him certain heirs at law. An administratrix of his estate was appointed, to whom the mortgage claim was presented, and the same was duly approved and allowed. Livermore then commenced suit against the administratrix to foreclose the mortgage. To that suit none of the heirs of the mortgagor were made parties. The proceedings in the action were regularly had and taken, and resulted in the entry of a decree of foreclosure in the usual form, the issuance of an order of sale, the sale of the mortgaged premises pursuant to its directions, and the execution of the sheriff's deed in due course of time. The question is, did the title to the property pass to the purchaser under the foreclosure proceedings? At the time of Baker's death the statute concerning descents and distribution provided that "when any person having title to any estate, not otherwise limited by marriage contract, shall die intestate as to such estate, it shall descend and be distributed subject to the payment of his or her debts" in the manner therein stated, and at the same time another provision of our probate system was, and since has been, as follows: "Actions for the recovery of any property, real or personal, or for the possession thereof, and all actions founded upon contracts, may be maintained by and against executors and administrators, in all cases in which the same might have been maintained by or against their respective testators or intestates." If Baker had lived there can be no doubt that the action for the

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