33 L. R. A. 107, 57 Am. St. Rep. 373. The decision in New England Tr. Co. v. Abbott, 162 Mass. 152, 38 N. E. 432, 27 L. R. A. 271, seems to be opposed to the last-named case, and to hold that such contracts are valid. And a provision in the articles that stock should not be transferred until all debts of the holder to the corporation were paid, although inconsistent with the general law giving the right to transfer property, has been held to be valid, and not contrary to public policy nor in contravention of express law. Gibbs v. Long Island, etc., Co., 83 Hun, 92, 31 N. Y. Supp. 406; Mechanics' Bank v. Merchants' Bank, 45 Mo. 516, 100 Am. Dec. 388; St. Louis I. Co. v. Goodfellow, 9 Mo. 149. In Lum v. American, etc., Co., 165 Cal. 661, 133 Pac. 303, Ann. Cas. 1915A, 816, a provision in the articles, and stated in the certificates, that the paid-up capital stock should not be assessed was declared to constitute a valid contract between the corporation and its stockholders. The court said: lands not all contiguous, or upon all lands | Bloede Co. v. Bloede, 84 Md. 129, 34 Atl. 1127, within a defined territory, such water could not lawfully be diverted to other lands by the agent in charge of the use, but must be supplied to the land to which it is dedicated. Fellows v. Los Angeles, 151 Cal. 64, 90 Pac. 137; Hewitt v. San Jacinto, etc., Dist., 124 Cal. 186, 56 Pac. 893; South Pasadena v. Pasadena, etc., Co., 152 Cal. 587, 93 Pac. 490; Del Mar, etc., Co. v. Eshleman, 167 Cal. 666, 140 Pac. 591, 948. It would be to the interest of the landowner benefited by such a public use to have a voice in the control of the company in charge of the use, as well as to the interest of those having a private right. It would therefore be to the interest of all the shareholders, under the plan devised, and, consequently, to the interest of the company, that none but users of the water, entitled as beneficiaries, should have stock of the company, or a voice in its control. The continuance of the service, under these circumstances, would not be a conversion of a public use into a private use but would be a mere continuance of a public use already existing. In such a case it would be entirely reasonable to provide that a sale of the land so beneficially entitled should carry the stock which is evidence for the owner of the land of his right to participate in the use of the water and in the control of the corporate agent in charge of the use. Such corporate agent would remain subject to the regulation and control of the public authorities thereafter, as before, notwithstanding the arrangement that stock therein would pass with the land to which it was declared to be attached. It may be that the 50 acres represented by certificate 1038, which was never supplied with water, is not now entitled to any unless there should be a surplus in the control of the company after supplying all lands which have heretofore lawfully received water. The issues in this case do not require us to decide the question as to the right to water. We are concerned only with the right to the stock, and that right is not affected by the fact, if it be a fact, that the company has no water to furnish to that particular parcel of land. 2. There are decisions holding that restrictions upon the sale or transfer of corporate stock which are unreasonable cannot be imposed by provisions in its articles or by-laws. A provision that the transferee of stock should vote for every increase of capital stock proposed by the directors has been held to be unreasonable and void. McNulta V. Bank, 164 Ill. 427, 45 N. E. 954, 56 Am. St. Rep. 203. Of a by-law which required 30 days' previous notice of a proposed transfer and of the price thereof, and gave the company or other stockholders the preferred right to buy it at that price, the court said that it was an unreasonable restraint upon * * "A corporation may enter into an agreement * * to do or to refrain from doing something when such action is not contrary to express law, or to public policy. * * * for a surrender by one of the parties of some Such contracts may even go so far as to provide privilege otherwise granted by law." [5] An agreement between persons who are entitled to the first right to the use of a certain supply of water to form a corporation to acquire such supply and distributing canals, and that the articles of incorporation shall provide that stock is to be issued only to the owners of land entitled to the water, 2 shares of stock for each acre of land, that the stock shall be attached to such land, and shall be transferable only with the land and upon the presentation of a conveyance thereof from the former holder, and that such stockholders shall have the first right to the water cannot be said to be unreasonable. If not, the articles and by-laws made in pursuance of and to carry into effect such agreement are not unreasonable. On the contrary, it is founded on prudence and reason, designed, as it would obviously be, to keep the control of the distributing company in the hands of those entitled to the use of the water. The beneficial effects in this case are shown by the fact that the water company has kept the rates down to the sum required to provide for expenses of distribution and maintenance, and has not attempted to make profits in any other manner. That it is not contrary to the general policy of the law is shown by the amendment of 1895 (St. 1895, p. 118) to section 324 of the Civil Code, providing, in substance, that a corporation organized to sell or distribute water for irrigation or domestic use may declare in its by-laws that the water shall be distributed only to stockholders, that the [9] The distribution of the shares, issued to Mrs. Jarvis, to her husband upon the settlement of her estate gave him no right additional to those she possessed therein. The obligation may be enforced against him as to all the shares. scribed in the certificate, shall only be trans- | stockholders, and also of the grantee of the ferred with such land, and shall pass with a land. The grantee becomes the owner of the conveyance thereof, a plan not essentially equitable title to the stock, and he may endifferent from that adopted by the incorpo- force the contract made for his benefit. Civ. rators of the Riverside Water Company. It Code, § 1559. does not violate the provision of section 324 that shares of stock "may be transferred by indorsement" and "delivery of the certificate." This language does not forbid the making of agreements to transfer, nor the making of contracts, good between the parties, that a certificate shall pass with the [10] After the water company had acquirtransfer of certain other property. Corpo-ed the water, canals, and works of the canal rate stock would be transferable without company, it also acquired another water supsuch provision. Civ. Code, § 1044. The pro- ply and system of pipes installed to furnish vision merely prescribes a mode by which water for domestic uses to the inhabitants the transfer may be made. It does not pro- of the city of Riverside. It has ever since hibit a transfer by other methods, nor de- operated said domestic system, furnishing clare that, when made in another manner, a water therefrom to all persons without retransfer may not be enforced by the party gard to their ownership of land or stock. entitled to the shares. The court found these facts, as we suppose, in support of its theory of the case that if the water company was engaged in public service of water, the land could not be attached to its stock. The two water systems were wholly separate and distinct, and the water furnished for domestic use was obtain [6] Specific performance lies in such cases. Feckheimer v. National Exch. Bank, 79 Va. 83; New England T. Co. v. Abbott, supra. The articles and by-laws of this company do purport to prevent a lawful transfer, except with the land, without the consent of the corporation. But the agreement not to trans-ed from a source not acquired from the canal fer the stock except with the land is voluntarily made by the person taking the stock. As it is not unreasonable or immoral, nor expressly forbidden, it is a contract which a person may lawfully make concerning his property and which may be enforced against him. company. A water company may lawfully carry on at the same time two or more separate and distinct systems of public service in different places, or for different uses in the same territory. The fact that this company was also engaged in the public service of selling and distributing water for domestic use in Riverside does not affect the reciprocal rights and obligations of the stockholders and the company with regard to the stock issued in pursuance of the articles and bylaws. The finding is immaterial to the case. The finding that the water company had allowed persons to vote as stockholders and to act as directors who did not own stock attached to land owned by them is not sustained except by evidence to the effect that in some instances where the land was conveyed the stock was not at once brought in by the parties for transfer to the grantee, and in the meantime the original stockholder appeared on the books to own the stock, and was permitted to vote the same; no objec [7, 8] 3. The articles, by-laws, and certificate constitute the evidence of the contract between the parties. Taken together, they are, in effect, an agreement between the stockholder and the company that the stock shall be transferable only with the land, and, conversely, that a transfer of the land shall pass to the grantee thereof the right to the stock, that is, the equitable title thereto. Re spondent admits that it was an agreement on the part of the stockholder that the stock should be transferable only with the land. Its language to that effect is too clear for dispute. This being so, it must follow, either that a transfer of the land carries the equitable title to the stock, or that the ownership thereof will forever remain in the orig-tion being made by the grantee. These facts inal holder of the certificate, which seems absurd. But the agreement went further, and provided that the stock should be "attached" to the land. It is not provided that it shall be detached by a sale of the land. The plain intent is that it shall remain attached, and that the ownership thereof shall follow the ownership of the land to which the water must be furnished. If it is to remain attached after the land is conveyed, it must pass with the land. This is the natural effect and the clear meaning of the provision. It is a contract made by the landowner for the benefit of the company, the other are also of no importance to the questions decided. For the reasons we have given, we are of the opinion that the court below erred in holding that the certificates of stock were held by Jarvis free of any claims of the plaintiff. It is unnecessary to declare that the certificates are appurtenant to the parcels of land described. It is sufficient for the plaintiff's purpose that the conveyance of the land, either directly, or upon foreclosure, creates an implied contract by the grantor, or former owner, to yield up the certificate to the grantee and that plaintiff is entitled to enforce such agreement and have the certifi-, cates transferred on the books of the company. The judgment and order are reversed. We concur: ANGELLOTTI, C. J.; LORIGAN, J.; MELVIN, J.; SLOSS, J.; HENSHAW, J.; LAWLOR, J. (174 Cal. 315) WESTERN INDEMNITY CO. et al. v. IN DUSTRIAL ACCIDENT COMMISSION TIONS. tude" being misconduct by an attorney in reference to his duties and obligations as such attorney-conduct, in fact, contrary to justice, honesty, modesty, or good morals. [Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. §§ 51, 61. For other definitions, see Words and Phrases, First and Second Series, Moral Turpitude.] 2. ATTORNEY AND CLIENT 38-DISBARMENT -CRITICISMS OF COURT. While attorneys have the widest latitude in differing with, and criticizing the opinions of, the courts, yet when they resort to misrepresen tation and unwarranted assaults upon the courts whose officers they are, they violate their duty and obligation. [Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. §§ 51, 61.] 3. ATTORNEY AND CLIENT ATTORNEYS. 38-DUTY OF 1. MASTER AND SERVANT 404-WORKMEN'S COMPENSATION ACT-EVIDENCE-DECLARAAn attorney is required at all times to strictDeclarations of the deceased employé re-ly observe the principles of truth, honesty, and lating directly to his injury were competent un- fairness, especially in criticisms of the court, der Workmen's Compensation, Insurance, and to the end that the public confidence in the Safety Act (St. 1913, p. 313) § 77a, as amend- due administration of justice be upheld, and the ed in 1915 (St. 1915, p. 1102), permitting such dignity and usefulness of the courts be mainhearsay evidence in an action under that act. 2. MASTER AND SERVANT 347-WORKMEN'S COMPENSATION ACT-CONSTITUTIONALITY. The provisions of Workmen's Compensation, Insurance, and Safety Act, § 77a, as amended in 1915, are not opposed to any constitutional Diego County; J. P. Wood, Judge. provision. tained. [Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. §§ 51, 61.] In Bank. Appeal from Superior Court, San William Humphrey, an attorney, was sus In Bank. Application by Western Indem-pended for two years from practicing, and nity Company and another for writ of re-appeals from such judgment. Affirmed. view against the Industrial Accident Commis- Wm. Humphrey, of San Diego, in pro. per. sion of the State of California and another. E. H. Lamme and Dempster McKee, both of Application denied. San Diego, for respondent. Duke Stone, of Los Angeles, for petitioners. Christopher M. Bradley, of San Francisco, for respondents. LAWLOR, J. The appeal herein was decided by the District Court of Appeal for the Second District. An application was made PER CURIAM. [1] The hearsay testimo-to this court for a hearing. It was granted ny complained of relative to the statements for the reason that we entertained some of the deceased employé relating directly to doubt whether the misconduct of the appelhis injury was competent under the provi-lant amounted to "moral turpitude," within sions of section 77a of the Workmen's Com- the meaning of subdivision 5, § 287, of the pensation, Insurance, and Safety Act, as amended in 1915 (St. 1915, p. 1102). [2] We are satisfied that such provisions cannot be held invalid as opposed to any provision of our Constitution. The application for a writ of review is denied. The publication by an attorney by a circular misrepresenting the facts of an action to recover money, and concluding with the statement that the judge "used his judicial office to enable said bank to keep that money," such accusation being without foundation, was the willful making of a false charge, which, since it could not, under Civ. Code, § 47, subd. 3, as to privileged publications, be justified because the judge was at that time a candidate for reelection to a judicial office, nor as a mere conclusion from facts stated, amounted to moral turpitude within Code Civ. Proc. § 287, subd. 5, authorizing disbarment therefor; "moral turpi Code of Civil Procedure. Upon a consideration of that question we have reached the conclusion that the District Court correctly disposed of it. The opinion, which is written by Mr. Presiding Justice Conrey, is, in part, as follows: "In this proceeding respondent was tried before the superior court upon an accusation preferred against him by the Bar Association of San Diego. The court found that the allegations of the accusation were true, and that the coned an act of moral turpitude. Thereupon it was duct of the respondent in the premises constitutordered and adjudged that, for a period of two years, his name be stricken from the roll of attorneys and counselors at law, and that for that period he be precluded from practicing as such attorney and counselor at law in any court of this state. From that judgment the respondent prosecutes this appeal. "In October, 1914, Hon. W. R. Guy, a judge of the superior court in and for the county of San Diego, was a candidate for re-election. Respondent caused to be printed and published a circular or card containing an article prepared under a heading, 'W. R. Guy's Conduct as Judge Disclosed.' Then followed a purported statement of proceedings had and judgments rendered by Judge Guy in two cases. In the first case, following a purported statement of the facts, the circular closed as follows: 'Do you want that kind of a man for Juvenile Judge? What will be the effect on young lawyers who look to the Judge for example? Answer with your votes November 3d.' In the second case, following a purported statement of facts, the circular closed as follows: 'Any person who has the intelligence of a common monkey knows that said fund could not become the property of the Justice of the Peace, or the bank, or any other person without the consent of the owner. Observe that the money was released from custody of the Justice and the bank notified of it and a request made for its return by the owner. Judge Guy used his judicial office to enable said bank to keep that money and also refused a new trial and refused to allow any other Judge to try the case. Do you want that kind of a man for Judge of Juveniles? What example will be set to the young who look upon a Judge of a Superior Court as some great personage? Answer with your votes November 3d.' "Answering the accusation, respondent admits that he published the circulars or cards in question, and asserts that they contain only the truth. He denies that the cards were printed wrongfully or unlawfully or maliciously, or with any other thought than to properly advise voters at the election. Appellant has brought up with his appeal a bill of exceptions, showing the proceedings at the trial upon this accusation against him, and including the evidence upon which the court below has based its finding that the publication made by respondent was false and malicious and involved moral turpitude on the part of the publisher. Bearing in mind the rule that the findings of the superior court upon matters of fact are not subject to review where they have any substantial support in the evidence, we will briefly compare the charges printed by the respondent concerning the two cases above mentioned with the facts as they occurred in the trial of those cases. "As to the first case, we find that the statement of facts in the circular of respondent is as follows: The administrator of David A. Smith brought action against an attorney-atlaw to recover $350.00. The facts stated by the administrator and admitted by demurrer of said attorney were: That said defendant was the attorney and confidential advisor of said Smith. That while said Smith was in a dying condition, under the effect of opiates and incapable of transacting business or comprehending the nature thereof, said attorney, in conspiracy with a confidential nurse of said Smith, induced said Smith to deliver to said attorney $350.00, which sum said attorney and said nurse falsely pretended to said Smith was for the defense to an action which would be commenced against said nurse. That said false representations werè made to said Smith for the purpose of obtaining said sum without consideration and that no consideration was received by said Smith for said money. That said administrator demanded of said attorney the return of said sum but no part of it was ever returned.' The real title of the above-mentioned case was 0. K. Bullard, Administrator, v. L. E. Dadmun. The first count in that complaint contains a statement of facts which evidently is the statement of facts referred to in the circular, although there are differences between the two statements of facts. For instance, although the complaint alleges that Dadmun was an attorney at law, it does not allege that he was the attorney of said Smith; and, although the complaint says that Dadmun had the confidence of decedent, and that decedent relied upon his representations, it does not say or show in any manner that Dadmun was 'confidential advisor' of Smith, or engaged to advise him at all about the affairs of said Smith. The second count of the complaint is pleaded as a common count for money had and received by defendant for the use of the decedent. A demurrer, both general and special with respect to each count of the complaint, was filed by the defendant Dadmun and came on for argument before Judge Guy, who sustained the demurrer. The court did not refuse to the plaintiff the right to further amend his complaint, but the plaintiff, who was represented by Mr. Humphrey, elected to stand on said amended complaint. Thereupon the court, as was necessary under its ruling on the demurrér, ordered dismissal of the action. "We are not called upon to say whether the order sustaining the demurrer was or was not legally correct. It is sufficient to say that debatable questions were presented; that the judge in the performance of his official duty rendered his decision thereon; and that there is absolutely nothing to show, or tending to show, that the conduct of the judge therein was such as to call for the suggestion or intimation that this conduct showed him to be the kind of a man whose incumbency in the judicial office would have injurious effect on young lawyers who look to the judge for example.' "But while the portion of respondent's published article which referred to the Smith Case does not appear to have been justifiable in so far as it was intended as a reflection upon the character of the judge, we are inclined to the opinion that it would not alone be sufficient to show moral turpitude on the part of the publisher or constitute cause for disbarment. As to that case the respondent avoided the use of language necessarily charging the judge with a willful misuse of his office. "This leads us to the next case described in said published circular, concerning which the circular reads as follows: 'Here's Another Case: The undisputed evidence in a case tried in Judge Guy's court July 8th, 1913, was as follows: A defendant under arrest in Justice Court deposited $25 for bail, which case came before the Justice of the Peace of National Township. Said Justice deposited in his name as Justice of the Peace said fund with the People's National Bank of National City, and told said bank that said fund was left with him as bail money and also told said bank from whom he received said fund. Said Justice died shortly thereafter. The successor, Justice Sherman, set said case for trial and on the hearing thereof Feb. 4th, 1913, dismissed the case, made an order releasing said bail money and notified said bank in writing of such release and dismissal. Said defendant delivered to said bank in person said written notice, requested payment to him of said bail money; said bank refused payment. Said defendant, after waiting four days, brought suit and obtained judgment in the Justice's court for said money. Said bank appealed. Judge Guy tried the case on appeal and on the above undisputed evidence gave judgment for said bank with costs of both trials. Said bank by Guy's decision got the money and said defendant who owned the money lost it with cost of two trials.' Then followed the language which we have quoted heretofore, beginning with the words, 'Any person who has the intelligence of a common monkey,' etc. dence shows that William Humphrey, being under arrest in a justice's court, deposited $25 for bail, which sum was deposited in bank in an account which the justice kept in his own name as justice of the peace; that the justice died while the action against Humphrey was pending: that the case was later tried by another justice, and the court made an order dismissing the action against Humphrey and ordering that his bail money be released. Thereupon the respondent filed his action against the bank to recover from it the sum of $25, thereby attempting to establish direct responsibility of the bank to him as owner of that sum. Judgment having been rendered in favor of Humphrey and against the bank in the justice's court where the case was tried, the bank appealed to The evi the superior court, and the case came on for, limit to the criticism members of the bar trial before Judge Guy. That judge appears to may make regarding the capacity, impartialhave reached the conclusion that the plaintiff in that action had no cause of action against the ity, or integrity of the courts, even though it bank, and that his claim should have been pre- extends to the deliberate publication by an sented to the administrator of the estate of the attorney capable of correct reasoning of basedeceased justice. Here again we are not call-less insinuations against the intelligence and ed upon to determine whether the judgment renSee State dered by Judge Guy was legally right, although integrity of the highest courts. we do not observe in it any ground for criti- Board, etc., v. Hart, 104 Minn. 88, 116 N. W. .cism. For present purposes, it is, however, suf- 212, 17 L. R. A. (N. S.) 585, 15 Ann. Cas. 197, ficient to say that, the conduct of Judge Guy in and note; Ex parte Steinman, 95 Pa. 220, 40 rendering the judgment which he did render in that case, as shown by the record here produc- Am. Rep. 637. In the first case mentioned it ed, is not subject to the slightest criticism which was observed, for instance: could in any way affect his character as a judge. Nevertheless, the respondent took it upon himself to publish a statement purporting to set forth the facts of that case and accompanied such statement with a distinctly libelous charge which, in our opinion, amounted to a Yet the false charges made by the attorney statement that Judge Guy, with full knowledge that plaintiff Humphrey was entitled to a judgin that case were of a graver character than ment in his favor, had 'used his judicial office those made by the respondent here. But, in to enable said bank to keep that money.' In our view, the better rule is that which reother words, the respondent being then and there an attorney at law and under an obligation and sworn duty 'to maintain the respect due to the courts of justice and judicial officers' (Code Civ. Proc. § 282), wantonly charged that a judge of the superior court before whom he was practicing had knowingly misused his judicial office for the purpose of bringing financial gain to a litigant. * * [1] The making of such a charge, under the circumstances here existing, was manifestly the willful making of a false charge, and cannot be justified as a privileged publication under the claimed excuse that the subject of attack was at that time a candidate for reelection to a judicial office. Civ. Code, § 47, subd. 3. [2, 3] It is contended by the respondent, in his petition for a hearing by this court, that he "had the undoubted right to state his conclusions; others could draw their conclusions as to whether the respondent or Judge Guy's conclusions were the more logical, reasonable, or honest." But the concluding statements of the circular are obviously charges, at least by innuendo, against the integrity and fitness of the judge, and must be presumed to have been so intended. "While attorneys have the widest latitude in differing with, and criticizing the opinions of, the courts, yet when they resort to misrepresentation and unwarranted assaults upon the courts whose officers they are, they violate their duty and obligation." 6 C. J. 594, § 54. Moral turpitude is misconduct by an attorney in reference to his duties and obligations as such atttorney-conduct, in fact, which is contrary to justice, honesty, modesty, or good morals. Bouvier Law Dict. See In re Coffey, 123 Cal. 522, 56 Pac. 448. "An attorney," it has been stated, "is guilty of misconduct whenever he so acts as to be unworthy of the trust and confidence involved in his official oath, and is found to be wanting in that honesty and integrity which must characterize members of the bar in the performance of their professional duties." 2 Thornton on Attorneys at Law (Ed. 1914) § 774. We are aware that "It may be (although we do not so decide) that a libelous publication by an attorney, directed against a judicial officer, could be so vile and base and of such a nature as to justify the disbarment of its author." In quires of those who are permitted to enjoy "As an attorney, or as a citizen, he had the right to criticize the judgments and conduct of but no man has a right at any time to degrade the judges in a decent and respectful manner; and intimidate a public officer, and bring his office into contempt, by the publication of libelous matter imputing to him impeachable ofdidate for re-election does not remove the ban." fenses, and the fact that the officer is a canAnd again: while judicious criticism is a necessary and ef"Nobody knows better than a lawyer that, fective means when used to keep the judges mindful of their duties and to prevent the selection of inefficient judges when judges are chosen by the people, yet, when carried, beyond the limit of truth and fairness, nothing is more certain to destroy the judicial balance of timid judges and to effectually impair the impartial administration of justice." See, also, Ex parte Wall, 107 U. S. 265325, 2 Sup. Ct. 569, 27 L. Ed. 552. It is our opinion that the trial court was warranted in finding that the publication of said articles constituted moral turpitude. Judgment affirmed. We concur: SLOSS, J.; LORIGAN, J.; |