granting of a certificate of probable cause by the trial judge, prior to the election of Boxton and prior to the declaration of a vacancy in the office, suspended the operation of the judgment for every purpose until the appeal, which is still pending, shall be finally determined. We are clearly of the opinion that the statute will not bear that construction. An office becomes vacant when the incumbent is convicted of a felony, and also it becomes vacant when he is convicted of any offense whether felony or misdemeanor-if it involves a violation of his official duties. There are felonies which involve no violation of official duty; there are felonies, such as extortion by a public officer, which do involve a violation of official duty; and there are simple violations of official duty, which are misdemeanors solely for that reason. Whether a felony does or does not involve a violation of official duty, the indictment will charge the facts constituting the felony, and a verdict of guilty will import a sentence of imprisonment in the state's prison, to be executed at once unless a stay of proceedings pending an appeal is obtained through the medium of a certificate of probable cause; and even in that case the defendant is committed to close custody in the county jail to await the result of his appeal, unless the court, in the exercise of a discretion rarely exercised and only in exceptional cases, admits him to bail. The result is that a public officer convicted of a felony is placed by the verdict in a position and under a physical restraint which prevents him from performing the duties of his office. But if the misconduct alleged against a public officer is a misdemeanor only, and only such because it is a violation of official duty, the proceeding against him is under the provisions of chapter 2 of part 2 of the Penal Code (sections 758 to 772). A verdict of guilty upon an accusation based upon the provisions of that chapter does not involve imprisonment of the defendant or any other penalty except removal from office. It does not, in other words, disable the officer to discharge the duties of the office pending the appeal, and accordingly it is specially provided that in such cases he is not even suspended from office until 30 days after the entry of judgment, and not then if in the meantime he shall have taken an appeal and obtained a certificate of probable cause. Pen. Code. § 770. This special provision for an entire suspension of the operation of the judgment in an exceptional case shows what the rule is in all other cases, and the ground of the exception affords conclusive evidence of the meaning and motive of the rule. It means that, since a prisoner in close custody cannot administer a public office, he cannot be allowed to stand in the way of the appointment of one who can perform its duties. No man has a property right in an office para

mount to the public interest. He has a property right in the salary and emoluments of an office while he is capable of discharging and actually discharges its duties; but when, by his fault or misfortune, he is no longer able to render the service, the public interests demand that he shall give way to some one who can. An official who is declared insane is simply unfortunate; but he ceases to be an official. An innocent man who is unjustly convicted of a felony is doubly unfortunate; but the fact that he may by means of an appeal ultimately succeed in establishing his innocence does not entitle him in the meantime to hold on to a public office which he is no more capable of serving than if he were insane. The law allows an appeal from a conviction of felony because, so far from being against the public interest, it is promotive of the public interest that a person accused of crime should have every reasonable opportunity of vindicating his innocence. But, if the person so convicted is the incumbent of a public office, these considerations do not weigh in favor of retaining him in that position pending an appeal. The pendency of the appeal does not affect the presumption of guilt, which arises immediately upon the rendition of the verdict; and it would be strange indeed if a state which gives such weight to that presumption as to deprive the defendant of the right to bail, and to require in all but rare and exceptional cases that he be detained in close custody in the common jail, should at the same time provide by law for his continuance in an office the duties of which he cannot discharge. There is no such law. The only effect of an appeal and certificate of probable cause is to stay the execution of the judgment. Removal from office is not part of the judgment of conviction in cases of felony, though a consequence which flows from it, and the statute in express terms defines and thereby limits the effect of the appeal and certificate of probable cause. "If the certificate provided for in the preceding section is filed, the sheriff must, if the defendant be in his custody, upon being served with a copy thereof, keep the defendant in his custody without executing the judgment, and detain him to abide the judgment on appeal." Pen. Code, § 1244.

We are cited to a number of cases decided in other jurisdictions which are supposed to conflict with these views. We do not think there is any conflict or discordance, except such as follows necessarily from different statutory provisions. On the other hand, there are numerous decisions by courts of the highest authority which fully sustain our conclusions. We do not consider it necessary to review these cases. We have only to construe our own statutes and the charter of San Francisco, the terms and policy of which are plain and identical, and there is no decision of this court which is in the least degree at variance with what is here held. The

case of People v. Treadwell, 66 Cal. 400, 5 Pac. 686, comes as near as any other to supporting the contention of respondent; but it is distinguishable on several grounds. Treadwell, an attorney at law, was convicted of a misdemeanor in a justice's court and immediately appealed to the superior court. There was no law making his conviction operate ipso facto to deprive him of his license. It was only the foundation for a new proceeding in the Supreme Court to revoke his license, involving the issuance of a citation to show cause why he should not be removed and a hearing upon the rule day. The justice of the peace, notwithstanding the appeal, forwarded to the Supreme Court a certified copy of his docket, and a citation was issued to Treadwell to show cause why he should not be removed. In response to the citation he alleged the pendency of his appeal. The court held, and properly held, that the proceeding under section 288 of the Code of Civil Procedure could not be instituted until the judgment became final. This is the rule generally in civil cases, and the rule was held applicable to a proceeding to revoke a license to practice law. which is essentially a property right. An attorney at law is not a public officer. He does not, as such, discharge any public function. His license, like the license of a physician, a druggist, a dentist, or an architect, merely enables him to engage in his vocation, for the service of private employers and for his private emolument. The public is not concerned in depriving him of the right to practice his profession in the service of those who choose to employ him until it has been finally determined that he is unfit for the profession. The decision in Treadwell's Case was clearly right; but a loose and inaccurate expression occurs in the opinion, which, if it were a correct statement of the law, might afford some support to respondent's contention. It is said-arguendo-that an appeal to the Supreme Court operates a suspension of the judgment of the lower court for all purposes. This, as every lawyer knows, is not true. If, in a civil cause, the appellant does not file a sufficient undertaking to stay proceedings upon the judgment, execution will issue, notwithstanding the pendency of the appeal, and may be levied upon the property of the judgment debtor, and the property may be sold, and an indefeasible title vested in the purchaser at the execution sale, notwithstanding the result of the appeal may be a complete and final reversal of the judgment of the trial court; and, as in civil cases, so in criminal cases, a judgment not final may be proved for every purpose for which it is effectual. It may be proved for the purpose of showing a vacancy in office, just as in a civil case it may be proved to justify the levy of an execution, or to establish the title of the purchaser at the execution sale: and this, even after it has been reversed on appeal.

The last objection urged by the respondent may be answered very briefly. He says the petitioner is not secretary to the mayor, hecause it is conceded that Boyle was duly appointed to the place, and it does not appear that he has ever been removed. It would be a sufficient answer to this objection to say that the petitioner's claim is certified by the de facto mayor; but it may be added that in the case of the mayor's secretary, who holds the position only during the mayor's pleasure, he is removed whenever a new secretary is appointed and assumes the duties of the office.

It is ordered that the peremptory writ of mandate issue as prayed.

We concur : SHAW, J.; ANGELLOTTI, J.; SLOSS, J.; HENSHAW, J.; McFARLAND, J.; LORIGAN, J.

ANGELLOTTI, J. While I have concurred in the foregoing, I deem it proper to add that I am satisfied that the effect of the charter provision declaring that an office "becomes vacant when the incumbent thereof dies, resigns, is adjudged insane, convicted of a felony," etc., was to create a vacancy in the office of mayor upon the rendition and entry of the verdict of conviction against the then incumbent. One is "convicted" of a crime when a verdict of guilty has been so given and entered against him, or when a plea of guilty has been given and entered. This is the well-settled meaning of the term as ordinarily used in our constitutional and statutory provisions, and I can see no warrant for concluding that it was used in any other sense in the charter provision under discussion. Under this view, it is entirely immaterial whether or not judgment has been given upon the conviction, or whether or not the execution of any judgment so given has been stayed by an appeal. The vacancy in the office is in no way dependent upon any judgment given on the conviction, but was fully and finally created by the happening of the event specified, viz., the rendition and entry of the verdict of conviction.

There can, of course, be no question as to the power of the people of the city and county of San Francisco to make such provision in their charter as to purely municipal offices. As is shown in the opinion of the Chief Justice, the provision for the ouster of the incumbent in the contingency named is in no degree by way of punishment for any offense alleged to have been committed by him, but is solely for the purpose of securing an efficient, orderly, and decent discharge of the duties of the office, which, doubtless, it was deemed could not be had during the incumbency of one under a verdict of conviction of felony.

We concur: SLOSS, J.; SHAW, J.

(151 Cal. 763)

record. The complaints alleged that defend

DELANEY v. SAME.

(L. A. 1,724.)

(Supreme Court of California. Aug. 22, 1907.) 1. CARRIERS-CARRIAGE OF GOODS-CONTRACT OF SHIPMENT.

A shipper requested a carrier to accept a shipment of horses of the value of $20 each, and stated that he desired to procure a certain contract of shipment, which referred to the request with the valuations therein and limited the liability of the carrier for loss to an amount not in excess of such declared value. Held, that the request of the shipper must be deemed a part of the contract of carriage.

2. SAME LIMITING LIABILITY-VALIDITY,

Under Civ. Code, § 2175, providing that a carrier cannot be exonerated by any agreement from liability for gross negligence, a contract which attempts to relieve a carrier from liability for gross negligence, or which attempts to fix a liability for half the actual value of the property carried, or any other proportion less than the actual value, is void.

[Ed. Note. For cases in point, see Cent. Dig. vol. 9, Carriers, §§ 654, 663, 664.]

3. SAME-STATUTES.

The common-law rule that a carrier cannot make a contract which exempts it from liability for any kind of negligence is abrogated by Civ. Code. $2174, providing that the obligations of a common carrier may be limited by special contract, and the prohibition against a carrier limiting its liability applies, by section 2175, only to limitation for gross negligence.

[Ed. Note. For cases in point, see Cent. Dig. vol. 9, Carriers, § 654.]

4. SAME LIMITING LIABILITY - CONTRACTS VALIDITY.

A contract of carriage of horses, which stipulates that the carrier shall not be liable for any damage not caused by its gross negligence, and that the amount of recovery shall be adjusted on the basis of value not exceeding the declared value, based on a consideration of a rate of transportation lower than the rate otherwise would have been, is not in conflict with Civ. Code, § 2175, providing that a carrier cannot be exonerated from liability for gross negligence, and the contract, if freely made, limits the recovery for damages resulting from gross negli

gence.

5. SAME.

The court, in determining whether a contract of carriage, which stipulates that the carrier shall not be liable for damage not caused by its gross negligence, and that the amount of recovery shall be adjusted on the basis of value not exceeding the value stated in the contract. is reasonable, will not consider the question whether the agreed value reasonably approximates the real value, and the contract establishing the value will be construed to embrace the real value.

Shaw, J., dissenting.

In Bank. Appeal from Superior Court, Ventura County; Felix W. Ewing, Judge.

Actions by Donlon Bros. and by Henry Delaney against the Southern Pacific Company. From judgments for plaintiffs in each action, defendant appeals. Reversed, and new trial ordered.

Canfield & Starbuck, for appellant. Thomas O. Toland and Merle J. Rogers, for respondents.

LORIGAN, J. These two cases were tried together and are presented here on the same

The

transport from Salinas to Sacramento, in this state, certain race horses belonging to plaintiffs; that through its gross negligence in the management of its train while en route one horse was killed and another injured, to plaintiffs' damages in the sum of $1,500 and $1,200, respectively. The answer of defendant denied that it had been guilty of gross or any negligence in the transportation of said horses, and for a further and separate defense set out a special contract entered into by the plaintiffs with defendant relative to the carriage of said property, and under which it averred that, if liable at all, it was not liable beyond the sum of $20 in each case, the agreed valuation of each horse as fixed in such contract of shipment. Upon the trial, aside from other evidence in the case. the execution of a special contract relative to the carriage of these horses as averred by defendant was proven; in fact, its execution was not questioned. In that regard it appeared that plaintiff Delaney, in his own behalf and as agent for the other plaintiffs, the Donlon Bros., applied to defendant at Salinas on August 24, 1902, for the transportation from that point to Sacramento of five horses, including those involved in this action. result of the negotiations between them was that Delaney chartered for $42 charges a whole car to transport the horses, and a certain document in relation thereto was executed by himself and the agent of the defendant. This document was divided into several parts, and was in form such as was generally provided by the defendant for execution where a special rate for transportation on an agreed valuation was obtained. The first part consisted of a request by the shipper to the carrier to accept a specified shipment, which, in the present instance, Delaney stated in his own handwriting, inserted in blanks left for that purpose, consisted of five horses consigned to himself at Sacramento from Salinas, and of the value of $20 apiece. The request contained a further statement by him that he desired to procure the form of contract set out below the request and constituting the second part of the sheet, the provisions of which he declared had been read by him, were freely understood, and accepted in consideration of the lower shipping rate thereby to be obtained. This request was filled out by him and, containing the statements indicated, was signed by Delaney. The next part of the document, which immediately followed the request as signed, consisted of a contract, which referred to the request and the valuation of the horses stated therein and was signed by the defendant and Delaney. This contract provided that Delaney should load, feed, and water the stock, etc., and that the defendant should transport it between the points named for $42 freight charges, and then further provided: "And second party [plaintiffs] hereby

specially agrees that in no event is first party [defendant] * ** to be liable for any loss or damage to said live stock not proven to have been caused by the gross negligence of first party in the performance of or failure to perform some duty which under the terms of this contract is due from first party to second party as to said live stock. And it is expressly agreed by second party that the amount to be by him claimed for each animal as described herein for loss or damage shall be adjusted on the basis of value at the time and place of shipment, not exceeding the declared value as hereinbefore set forth, and on which declared value the rate or rates of transportation hereinbefore named by first party are based, and in no event is there to be any recovery from first party. * ** for any loss of or damage to said live stock from whatsoever cause arising in excess of the declared value hereinbefore set forth." This contract was followed by the third part of the document, which consisted of a statement that the published rates of transportation under these special contracts applied only to ordinary live stock, and set forth two schedules, the first of which enumerated the ordinary kind of live stock to which such rates applied, and fixed what was deemed the ordinary valuations of such animals, and declared that such rates only applied in the case of ordinary animals, and as to horses applied only to race horses sent by passenger train whose actual and declared value did not exceed $100, and to other horses whose actual and declared value did not exceed $20. It was further stated that values of animals in excess of those specified in this schedule should be deemed extraordinary, and subject to increased charges as compared with charges for such ordinary live stock, and the second schedule, as set forth, showed what these charges should be that for every 100 per cent. increase in valuation of such live stock over the ordinary valuation there would be under these special contracts an increase of 10 per cent. in the freight charges. These statements and schedules were a portion of the matters referred to in the request signed by Delaney, and which he stated therein he had read and agreed to. The last portion of the document is immaterial to the question presented here, and hence is not stated. These papers having been executed and delivered, the defendant undertook the carriage of the horses to their destination, and on the journey an accident happened to the train, occasioning the loss of the two horses mentioned in the complaint under circumstances which-the plaintiffs claim, and the jury found-constituted gross negligence on the part of defendant. Aside from the evidence relative to the making of the special contract, the cause was fully tried upon the other issues involved and a general verdict returned by the jury in favor of the Donlon Bros. for $350, found by them to be the value

of the horse killed, and in favor of Delaney for $200 damages for the horse injured. Judgments having been entered on the verdicts, defendant appeals therefrom; its appeals being accompanied by a bill of exceptions in which the errors relied on for a reversal are presented.

The principal question arising on this appeal relates to the effect which is to be given to the special contract proven to have been entered into between plaintiffs and the defendant, conceding, as we think it must be, that there was sufficient evidence in the case warranting the jury in finding that the defendant was guilty of gross negligence occasioning the loss and injury complained of. At the close of the evidence the defendant requested the court to instruct the jury that, if they should find for the plaintiffs, their verdict should not exceed $20 damages in favor of each. This instruction the court refused to give, but instructed them that, if they found the defendant was guilty of gross negligence in the carriage of the horses, they should find in favor of plaintiffs for their value, not exceeding the amount stated in the complaint. The defendant excepted to the action of the court with relation to these instructions, and under these rulings is presented the question as to what extent the liability of the defendant was affected by the execution of the special contract. The view taken by the trial court was, and it is the position taken by counsel for respondent here, that while, under the provisions of the Civil Code, a common carrier may limit its liability for ordinary negligence (section 2174), it is prohibited by section 2175 thereof from doing so as to its gross negligence, this latter section providing that "a common carrier cannot be exonerated, by any agreement made in anticipation thereof, from liability for the gross negligence, fraud or willful wrong of himself or his servants"; and in the light of that section it is claimed by respondents that the special contract relied on was an attempt to limit the liability of defendant for damages for gross negligence to the agreed value of the horses as stated in it, and was therefore void, and for that reason plaintiffs were entitled to recover for the actual value of the horses, if gross negligence of defendant occasioned their loss, independent of the terms of the special contract providing that such liability of defendant should not exceed that agreed amount. On the other hand, the position of appellant as to such contract, or, rather, as to the several instruments executed by plaintiffs and defendant-the request for the shipment signed by plaintiffs alone and the bilateral special contract executed by plaintiff's and itself-is, first, that aside from the special contract, and eliminating its consideration from the case entirely, the plaintiffs were estopped by their statement of value in the request for shipment from subsequently claiming that the horses injured were of any